BREAKING: Indefinite Adjournment: SANs, Lawyers divided over Nnamdi Kanu’s trial

Lawyers and Senior Advocates of Nigeria, were divided over the weekend on the legality or otherwise of the indefinite adjournment of the trial of the leader of the Indigenous People of Biafra, Nnamdi Kanu by Justice Binta Nyako.
The Federal High Court in Abuja had on Monday adjourned Kanu’s trial indefinitely following Kanu’s insistence that the judge cannot preside over his case, citing her previous recusal.

Kanu had earlier filed a petition against Justice Nyako before the National Judicial Council,(NJC) accusing her of judicial misconduct in handling his trial.

At the resumed trial last Monday, prosecuting counsel, Adegboyega Awomolo (SAN), stated that the prosecution had filed and served all necessary documents and was ready to proceed with the trial.
Responding, defence counsel, Aloy Ejimakor, said the issue before the court was not about proceeding with the trial.
At that point, Justice Nyako intervened, explaining that although she had earlier recused herself from the case, the court’s Chief Judge turned down her decision to withdraw.
She, however, directed the defendant to file a formal motion requesting the reassignment of the case to another judge.

SANs disagree

A Senior Advocate of Nigeria (SAN), Dr Abiodun Layonu, has weighed in on the indefinite adjournment of the trial of Nnamdi Kanu, the detained leader of the Indigenous People of Biafra (IPOB), attributing the delays to Kanu’s own legal strategy.

Speaking on what he makes of the indefinite adjournment of Nnamdi Kanu’s case, Dr Layonu criticized Kanu’s approach to his legal battles, stating that the IPOB leader was deliberately stalling his trial through numerous legal challenges.

According to Layonu, Kanu appears to be using legal loopholes to avoid conviction while remaining in detention.
“He doesn’t want his trial to go on. If he believes that no matter what, he will be convicted, then his best strategy is to ensure that it doesn’t happen.

“He raises objections, asks judges to recuse themselves, and challenges different aspects of the case, which ultimately leads to delays,” Layonu said.

Layonu recalled a historical precedent involving the late Chief MKO Abiola, where similar judicial objections led to a prolonged legal battle.

However, he emphasized that while a defendant is entitled to raise concerns about judicial bias, they cannot dictate who should preside over their case.
“A defendant can raise an objection, and the judge may step aside but the defendant cannot pick their judge or prosecutor,” he said.
“Kanu is playing to the gallery, presenting himself as a victim of persecution rather than facing his trial,” Dr Layonu maintained.
He also questioned why Kanu is allowed to make public statements and interact with the media despite being in detention.
“Once the court proceedings are over, he should be taken back without all these public shows,” Layonu asserted.
Another SAN, Mba Ukweni, who expressed concerns over the indefinite adjournment of Kanu’s trial, declared that if a judge is unwilling to continue with a case, it should be reassigned promptly to ensure the defendant’s right to a fair and timely hearing is upheld.
He emphasized that leaving Kanu in detention without a clear trial date constitutes a breach of his constitutional rights.

Lawyers react
Reacting, a Public Interest and Human Rights Lawyer, Inibehe Effiong, said that an indefinite adjournment does not mean the court would no longer sit on the matter.
“On the contrary, it means the matter stands adjourned pending fresh directives from the court, which would be communicated to all the concerned parties.
“The indefinite adjournment means that Kanu will still be in detention until that decision is made.
“Usually, legal matters are adjourned with definite or specific dates. That is how cases are ordinarily adjourned, but when the case is adjourned indefinitely, it means that the case is adjourned pending further directive, development or when the judge deems it fit to give a time for the matter to be recalled,” he said.
According to the lawyer, indefinite adjournment does not mean forever but a waiting period before further directives.
“So one would expect that the judge will examine what led to the order adjourning the matter indefinitely, take a decision and communicate it to the parties. That is what it simply means.
“The date of that communication is unknown. Pending a fresh communication from the court, the matter stands adjourned. That’s the technical meaning of indefinitely. It does not imply that the court will never sit on that matter again. The court will still convene or sit over that matter whenever the judge deems it fit.”
An Abuja based lawyer, Bright Enado, in his own reaction, noted that nothing warrants the indefinite adjournment on ground that the trial Judge had earlier recused herself in the matter.
“It is not legally proper for Justice Nyako to continue presiding over the case.
“Going by Section 287(3) of the amended 1999 Constitution, it provides in the following lucid language: “The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.
“There is no doubt that on September 24, 2024, the Federal High Court of Nigeria [Coram Nyako, J.] entered a Ruling recusing herself from further trying Mazi Nnamdi Kanu and returning the case file to the Chief Judge of the Federal High Court following the application made to the Court by Mazi Nnamdi Kanu.
“According to the Constitution, decisions of Courts include; ‘Rulings’, ‘Judgments, ‘Decrees’.
“So, rightly, the Ruling entered by the Federal High Court on September24, 2024 falls within the compass of decisions contemplated by the Constitution that ought to be enforced by all authorities and persons who include both the Chief Judge of the Federal High Court, the very Judge that entered the Ruling and the Prosecution (which is the Nigerian State).
“Refusal of the Honourable Chief Judge of the Federal High Court to enforce the decision of the Federal High Court handed down on September 24, 2024 by issuing an administrative directive to undermine same, should worry all those who subscribe to constitutional democracy.
“The Hon. Justice B.F.M. Nyako has lost the jurisdiction to continue trying the charge brought against Mazi Nnamdi Kanu by the Federal Government of Nigeria. She cannot sit on appeal over her own decision.
“It is only the Court of Appeal that possesses the constitutional vires to review and either upturn or uphold the decision of the Federal High Court entered on the 24th of September, 2024. This is elementary law.
“It is most unfortunate that the Chief Judge of the Federal High Court could issue an administrative directive to the Honourable Justice B.F.M. Nyako that purports to upset a judicial decision entered by the Federal High Court which has neither been upturned on appeal nor stayed but rather still subsisting.
“There is no constitutional warrant for the course taken by the Honourable Chief Judge of the Federal High Court.
“The Honourable Chief Judge of the Federal High Court is called upon to withdraw the administrative directive which constitutes a brazen assault particularly on Section 287(3) of the 1999 Constitution (as amended) and comply with the terms of the Order entered on 24th September, 2024.
“By his action, he has arrogated to himself powers he constitutionally does not possess.”
Another human rights lawyer, Chief Nkereuwem Udofia Akpan, in his own reaction submitted that the indefinite suspension to determine a fresh directive is in order, at least as far as the recusal issue which is the bone of contention is concerned.
“You must look at the Federal High Court establishment Act and the Rules governing the Practice and Procedure in the court, for this purpose.
“A community reading of the aforementioned will show that it is within the statutory and jurisdictional competence of the Honourable Chief Judge of the Federal High Court to assign cases to all judges of the Federal High Court.
“Now, a judge may for good cause shown, recuse himself or herself from handling a matter and return the file to the Chief Judge to be reassigned to another judge.
“It is critical for the lay public to understand that it is within the absolute discretion of the Chief Judge of the Federal High Court to accept or reject the reasons advanced by the judge who wishes to be so recused.
“If in the opinion of the Chief Judge of the Federal High Court, the reasons advanced by the judge wishing to be recused, are not cogent, verifiable or otherwise untenable, then, the Chief judge may send the file back to the judge concerned to continue the matter.
“This later decision by the Chief judge, sending the file back is final and cannot be interfered with by any other authority or power.
“There is no provision in any law for the time being in force that gives the concerned judge the option of returning the file for a second time.
“On the issue of whether or not the accused person can pick and choose the venue of his trial or how the court should be constituted or the panel that will hear his appeal, in the case of Appeal, the answer is that an accused person has no such rights in any law, convention and or statute.
“What the constitution provides for, as a fundamental right, in Chapter IV, is that the accused person, who is hauled before a court or other tribunal must be given a fair hearing and that the court, panel or tribunal trying him or her, must be constituted in such a manner that secures its independence and impartiality”.
Another lawyer, Emmanuel Ekwe while reacting noted that, “It is obvious that Nnamdi Kanu’s case has amounted to waste of precious judicial time.
“If the case is reassigned by the chief judge, Kanu’s lawyers may seek to revisit previous rulings, including the rejection of his bail application. Will this not be another waste of time and resources?
“I feel the Federal Government of Nigeria does not have credible evidence to prosecute Kanu. In order to move on as a country and face other serious issues steering us in the face, we cannot rule out out-of-court settlement or political solutions as some people will call it”.