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The Abuja division of the Court of Appeal has shifted hearing to March 7, 2023 in an application filed by the detained leader of Indigenous People of Biafra (IPOB), Nnamdi Kanu, seeking to be joined in the appeal challenging the proscription of the group by the Federal Government.

Kanu had, on September 5, 2022, filed the joinder application as an interested party in the January 18, 2018 judgment of the Federal High Court in suit No: FHC/ABJ/CS/871/2017, that proscribed IPOB.

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Although a hearing in the application was scheduled for yesterday, the appellate court did not sit and the matter was shifted to March 7, 2023.

Lead counsel to Kanu, Chukwuma-Machukwu Ume, SAN, who filed the processes, said his client was appealing the judgment of the trial court which it rendered without hearing from him. Kanu, who expressed dissatisfaction with the judgment, had proposed to challenge it on appeal.

In his proposed grounds of appeal, he contended that the trial judge erred in law when he ruled that: “The Honourable Attorney-General, in his application ex parte, exhibited documents showing the existence of threat to national security by the Respondent/Applicant and, I, accordingly, made the order.

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“By the order of 20th September 2017, prescribing the Respondent/Applicant organisation, I’m of the firm view that the right of the applicant to private and family life freedom of expression, right to peaceful assembly and freedom of movement have not been infringed upon. I also hold that the applicant’s right to fair hearing has not been violated by the grant on the ex parte order.”

On this ground, Ume argued that the ex parte order of proscription of the appellant and its listing as a terrorist group violated the applicant’s constitutional right to fair hearing when the second respondent, consequent upon the said order declaring and proscribing the appellant as a terrorist group, arrested, detained and is currently prosecuting the applicant on charges of terrorism, and as a member/leader of the appellant on six-count charges, solely predicated on the said order pending on appeal.

That charging the applicant with the offences enumerated above, which offences are wholly predicated on the said ex parte order, and upon which the applicant was not on notice, violated the applicant’s constitutional rights, including particularly his right to fair hearing.

Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) [hereafter the ‘Constitution’] provides as follows:

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“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law, and constituted in such a manner as to secure its independence and impartiality.”

In addition, he stated that the trial court misdirected itself in law and, thus, occasioned a grave miscarriage of justice that has adversely affected the applicant when it held that: “The words ‘the judge in chambers may on an application made by the Attorney-General …’ presuppose that the application is to be made Ex Parte.” The learned trial judge lifted the words in small close quotes from Section 2 (1)(c) of the Terrorism Prevention (Amendment) Act, 2013, which had used ‘judge in chambers’, not ‘ex parte’ in enacting the procedure for obtaining an order of proscription and declaration of an entity as a terrorist organisation.

On the clear divergence between ‘judge in chambers’ and ‘ex parte’, the current and trite law is as follows:

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“The plain meaning of ex parte is not one and the same with ‘judge in chambers’. Whereas, ex parte carries elements of one party only being heard even in open court (not necessarily in chambers), a judge-in-chambers does not mean that only one party would be heard.”

This well-considered position was enunciated in Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 S.C. where the Supreme Court held as follows: “The Supreme Court and any other court are enjoined by the Constitution and the rules of natural justice to observe such rules that ensure a fair hearing or trial.

“And this includes Chambers Sittings where parties are absent and unrepresented. This cannot be achieved unless and until all parties are heard or given the opportunity of being heard. Their submissions on the issue or matter under consideration are presented by the processes and their accompanying attachments.

“In the instant case, no fair hearing was granted to the first and second respondents when the appeal was dismissed by the Supreme Court in Chambers, and that amounted to a nullity. Consequently, all the proceedings and the judgment given were set aside by the Supreme Court.”

(Sun)