By: ALOY EJIMAKOR
RE: Reasons why Justice Binta Murtala-Nyako can no longer conduct Mazi Nnamdi Kanu’s trial
This Press Statement is aimed at aiding a comprehensive understanding of the nuanced issues arising in the case of Mazi Nnamdi Kanu from 24th September 2024 (when Justice Murtala-Nyako was recused) to 10th February 2025 when he was summoned to appear before Justice Nyako. In our considered view, the proceedings which was concluded some hours ago is a nullity because the Judge, having been recused by an extant Order of court, no longer possessed the requisite jurisdiction to conduct the hearing. Thus, the Order of adjournment sine die eventually made by the Judge in the midst of the impasse is also a nullity. The reasons for our position are as follows:
1, First of all, the process by which the Honorable Justice Murtala-Nyako exited from the case as the trial judge was a “judicial event”, as it emanated from the COURT ORDER she made on 24th September 2024. A plain reading of the Order shows that Her Lordship graciously consented to the recusal and that alone amounts to something.
2, The said Order is extant and subsisting and was never appealed. So, to this day, it remains valid in all ramifications, such that strains the legality of the hearing conducted before the same Judge today, 10th February.
3, To be sure, His Lordship cannot REVIEW, REOPEN or REVISIT the matter of her recusal because she no longer possess the jurisdiction and she has become FUNCTUS OFFICIO. The following cases (on quotes) are illustrative:
a. “Now, the principle of functus officio, is not just a principle of procedure only. It is more of a question of jurisdiction and competence of a Court of law, such as the trial court, to give a judgment and thereafter re-visit it or conduct further post judgment proceedings. The question therefore is whether a Court can competently assume jurisdiction over a case it had concluded?”
b. In Sanusi v. Ayoola (1992) 11/12 SCNJ 142; (1992) LPELR- 3009 (SC), the apex Court per Karibi Whyte, JSC stated at page 19 thereof that: There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case. It cannot assume the status of an appellate Court over its own decision, except there is statutory power to do so.”
c. In Mohammed v. Husseini (1998) 14 NWLR (pt. 584) 108; (1998) LPELR -1896 (SC), the Supreme Court per Mohammed, JSC p. 42-43 defined the principle thus: “The Latin expression functus officio simply means “task performed”. Therefore applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter”.
d. In Ukachukwu v. Uba (2005) 18 NWLR (Pt.956), it was held that: “The phrase “functus officio” has been defined to mean a task performed, fulfilling a function or discharging and accomplishing the intended purpose, and when it is referred to a Court, that Court will have no further force or authority in effect it would lack competence or jurisdiction in the matter anymore. It cannot review, re open or re-visit the said matter except under exceptional circumstances.”
e. In Ogboru V. Ibori (2005) 13 NWLR (Pt. 942) 319, it was held that: “.. it is settled law that once a Court has delivered its decision on a matter, it becomes functus officio with regard to that matter. What this means is that a Court cannot sit as an appellate Court over its decision; once it has decided a matter, it ceases to be seised of it, and it cannot re-open it for any purpose whatsoever.”
f. In FIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (Pt. 1216) 247, the Supreme Court held thus: “A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lack potency to review, reopen or revisit the matter. Once a Court delivers its judgment on a matter, it cannot revisit or review the said judgment except under certain conditions.“
4, We have been informed by our Client (Mazi Nnamdi Kanu) and we have obtained a copy thereof … that he has initiated a Petition or a Complainant bordering on judicial misconduct against Honorable Justice Binta Murtala-Nyako. This alone, without more, is enough to oust the Justice from subjecting Mazi Kanu to any trial before her court. It is against the rule of natural justice, equity and good conscience (and even the Cons) for a Judge against whom a defendant has preferred a Petition to – before the disposition of such Petition – continue to preside over the trial of such defendant. This is very easy to understand – for lawyers and lay people alike. Compare and contrast with someone being a judge in his or her own case, or being a Judge over you when she is a defendant in case you initiated against her. The Petition or Complaint was filed on 14th January 2025 and it is pending.
5, As a BACKGROUND to the current impasse, below are the reasons Mazi Nnamdi Kanu had to take the drastic step of requesting the RECUSAL:
a. First, back in June 2021, the same Judge conducted a hearing by which Mazi Kanu (an awaiting-trial) was ordered remanded without notice to, and the presence of his former Counsel (of record) at the hearing. That was a grave constitutional error that turned highly prejudicial against Mazi Kanu and it continues to be constitutionally injurious to him to this day.
b. Second, Mazi Kanu was ordered detained in DSS cell instead of a prison facility as the law contemplates. The excuse then (which – by the way – fell outside the exceptions) was that every penitentiary in Nigeria is porous or pathetically low-security. This excuse suggested a judicial state of mind that imputed a proclivity for jailbreak to Mazi Kanu. That’s wrong and unacceptable.
c. Third, when the DSS detention posed grave risks to Mazi Kanu’s constitutional right to fair hearing and to Counsel, the Judge summarily refused his application for transfer to prison or other less restrictive facility and instead ordered an accelerated trial. That’s manifest injustice.
d. Fourth, when the Supreme Court ruled against Mazi Kanu’s bail revocation, the same Judge who had revoked his bail refused to reinstate the bail. That’s an egregious violation of the Constitution and the doctrine of stare decisis.
e. Fifth, the Supreme Court had held that, by revoking Mazi Kanu’s bail, the Judge’s impartiality has become suspect. In the face of this damning indictment from the apex court, it would amount to a dangerous gamble for Mazi Nnamdi Kanu to ignore this and take his chances in a trial that has six capital offenses arrayed against him.
f. And sixth, despite the enormous risks to Mazi Kanu’s right to fair trial posed by the strict conditions of his detention at the DSS and the illegality of the charges, the Judge summarily refused our meritorious application to adjourn the trial until the exhaustion our appeal challenging her jurisdiction to try the case. For Mazi Kanu, this is the last straw that broke the camel’s back.
g. Above all, when Mazi Nnamdi Kanu was presented in Court on 29th June 2021, following his rendition from Kenya, the Court had a duty to make inquiries regarding the locale of his “arrested” (whether in Nigeria or abroad); and if abroad, whether his “arrest and surrender” to Nigeria complied with the pertinent laws of the country of his refuge, as well as that of Nigeria and the international laws on point. We are aware that the Court never made such inquiry because if it did, it would have revealed the earliest indication of the infamous extraordinary rendition that has complicated jurisdiction to this day. You will recall that the former Attorney-General had falsely claimed that Mazi Nnamdi Kanu was lawfully extradited. If not for the dexterity of one Mazi Nnamdi Kanu’s Counsel who had told Nigerians what actually happened, this grave falsity would have persisted as the truth to this day.
6, The post-recusal Summons issued to Mazi Nnamdi Kanu that brought us to Court on 10th February 2024 cannot be blamed on the Court alone. The prosecution grandfathered it by a Letter it wrote to the Court on 5th December 2024, requesting that the case be re-calendared for a hearing before Justice Murtala-Nyako. In our reaction and after a considered view that the said Letter strained the boundaries of prosecutorial misconduct, we countered with a reply, vehemently opposing the re-calendaring the case to be heard before a Judge who is bound by an extant Order of recusal.
7, In our efforts to stave off what we reckoned to be burgeoning unconstitutionality that lies in sending the case back to the recused Judge, we took the responsible step of generating a Letter to the Honorable Chief Judge of the Federal High Court, requesting for transfer of the case to the Southeast. We took this step because we were reliably informed that the “official” reason for sending the case back to the recused Judge is because no other Judge in the Abuja Division of the Federal High Court is willing to take the case. And the reason why Southeast is in play (to the exclusion of other zones) is because, being the place where the offenses were alleged to have impact, it possesses far superior jurisdiction to every other division, including Abuja.
8, Having come thus far, the next logical question is: What’s the way forward? The answers are simple and they are as follows:
a. If no Judge (other the recused Judge) in Abuja is willing to try the case, the next lawful thing to do is to – on the authority of Section 45, Federal High Court Act & James Ibori v. FRN – transfer the case to any of the Federal High Court divisions in the Southeast.
b. If there’s some sort of a “secret official embargo” in having Mazi Nnamdi Kanu tried in the Southeast, you cannot keep him in an endless limbo while he’s detained as an awaiting-trial. Awaiting which trial? A trial that cannot happen in Abuja or Southeast?
c. In every common law country, when a State has an insurmountable difficulty in putting a detainee on trial within a reasonable time, the next responsible and lawful option is to release such a detainee until such a time his trial can be properly conducted, subject to any statute of limitation that may be applicable.
d. Under the Constitution, every criminal suspect, especially a detainee, deserves to be tried within a reasonable time, not an indefinite time, not being in detention for almost four years awaiting trial that never happens for no fault of the detainee but of the State. Additionally, the Administration of Criminal Justice Act prescribed a day-to-day trial for every criminal suspect. It becomes more urgent and compelling when such suspect is in detention, and a lengthy to boot.
In summation, we make bold to say that the ball is firmly and exclusively in the court of the Federal Government, in the sense that since it has proved unable to bring Mazi Nnamdi Kanu to trial within a reasonable time, then the next best thing (which is also lawful and constitutional) is to end this whole saga honorably by releasing Mazi Nnamdi Kanu either through restoration of his bail or otherwise – by a discontinuance of a case that was burdened by the indices of internecine politics from its inception ten years ago in 2015.
Signed:
Aloy Ejimakor, Esq.
f/Mazi Nnamdi Kanu’s Legal Team.
Abuja, 10th February, 2025.
