Courts Ordered, Tinubu Withheld — Vol. I Part 2

§The Suit Abuja Chose to Contest

Kanu filed Suit No. HIH/FR14/2021 in the High Court of Abia State from a cell of the State Security Service in Abuja. He named seven respondents: the Federal Government of Nigeria, the Attorney General of the Federation, the Chief of Army Staff, the Inspector-General of Police, the State Security Service, its Director-General and its Director for Abia State (TheCable, 2022a; Nairametrics, 2022a). Established He asked for N5 billion in damages for the physical, mental, emotional and psychological harm he said the invasion of his father’s house had caused him. The pleading, as reported, set out four declarations and three orders (ICIR, 2022a). Reported

The federal government did not ignore the case. It appeared and attacked the court’s power to hear the claim. Justice Anya rejected that objection and proceeded to judgment (BusinessDay, 2022; ICIR, 2022a). Established Counsel for the Army also faulted Kanu for claiming damages from the Chief of Army Staff when, in counsel’s view, the proper party was the Army Council (The Guardian, 2022). Reported A government that contests jurisdiction and loses has submitted to the court’s process; it cannot later describe the judgment as something that happened elsewhere. Inference

§What the Court Ordered

On January 19, 2022, in a judgment that lasted about an hour, Justice Anya entered five orders and findings against the state. He held the military invasion of the Afaraukwu home on September 10, 2017, unlawful. He held that it violated Kanu’s fundamental rights. He awarded N1 billion in damages against the federal government. He ordered the federal government to publish an apology to Kanu in three national newspapers. He advised the government to adopt a political resolution of matters involving Kanu and IPOB (TheCable, 2022a; Blueprint, 2022). Established

Each of those orders binds a defined party, and the record names it. The damages run against the Federal Government of Nigeria, the first respondent, and so does the apology. Neither order is addressed to the military officers who carried out the operation, and neither depends on any finding of personal fault. Established Liability under the judgment is institutional. It attaches to the state as an entity, survives every change of government and passes with the office of the President from one occupant to the next. Inference

§What the Court Refused

Precision about the refusals protects the award. Justice Anya struck out Kanu’s prayers to declare his repatriation from Kenya illegal and to declare his continued detention by the State Security Service unlawful (The Guardian, 2022). Established The N1 billion therefore compensates one event, the September 2017 invasion, and nothing that happened in Nairobi in 2021. One early report stated that the court had also ruled the abduction from Kenya illegal (ICIR, 2022a). Reported That account conflicts with the fuller reports of the same day, and this file treats the narrower reading as correct until the certified judgment is in hand. The narrower reading costs the government nothing it can use: the Kenya removal was priced separately, nine months later, by a federal court.

The figure itself deserves attention. Kanu asked for N5 billion and received one fifth of it. The court weighed the claim, cut it and fixed a sum it considered proportionate to an armed invasion of a family compound. Established A damages award that has already been reduced by the trial judge leaves the debtor no argument that the amount is excessive, unless it raises that argument on appeal, and no appeal against this award appears in any record this file has located. Open

§The Reactions

Within a day the judgment had been reported by TheCable, The Guardian, Nairametrics and BusinessDay, among others (TheCable, 2022a; The Guardian, 2022; Nairametrics, 2022a; BusinessDay, 2022). Established No federal official could later claim ignorance of its terms.

Reaction divided along predictable lines. Kanu’s counsel, Aloy Ejimakor, said the judgment diminished the notion that his client had jumped bail in 2017 and expressed confidence that the federal government would implement it (Nairametrics, 2022a; The Guardian, 2022). Reported Counsel for the Army said the military would study the judgment and respond appropriately (The Guardian, 2022). Reported The Human Rights Writers Association of Nigeria called on President Muhammadu Buhari to pay the N1 billion and apologize at once, while Emeka Wogu, a lawyer and former Minister of Labour, predicted that the government would appeal (BusinessDay, 2022). Reported

Four and a half years have passed since the Army promised to study the judgment. Its response, if one exists, has never been published. Open The prediction of an appeal, made by a former federal minister on the day of judgment, is the only public trace of any intention to challenge the award. Open No stay of execution has been reported. No court has set the judgment aside. On the public record, it stands as delivered.

§The Constitutional Footing

Nigerian law gave Justice Anya every power he used. Section 46 of the Constitution allows any person who alleges that a fundamental right has been or is likely to be contravened to apply to a High Court in the state where the contravention occurred, and it authorizes that court to make such orders as it considers appropriate to enforce the right. Established The invasion occurred in Abia State, and the High Court of Abia State heard the claim. Section 287(3) then requires every authority and person in the Federation to enforce that court’s decisions. Established

The apology order has a direct constitutional parallel. Section 35(6) of the Constitution provides that any person unlawfully arrested or detained is entitled to compensation and a public apology from the appropriate authority or person. Established The Constitution treats compensation and apology as companion remedies for unlawful state action against the person, and Justice Anya ordered them together. Part 6 of this file returns to the apology, the cheaper of the two obligations and the one the government has still not met.

§The Attorney General Was Never Surprised

Nigerian law requires the consent of the Attorney General before a judgment creditor may attach federal money held by a public officer (Sheriffs and Civil Process Act, s. 84). In CBN v. Interstella Communications Ltd. (2018), the Supreme Court explained the purpose of that rule: it protects the Attorney General from being taken by surprise when public funds earmarked for other purposes are diverted to satisfy a judgment the government may know nothing about (Jimoh, n.d.). Established That purpose has no application to this award. The Attorney General of the Federation was a named respondent in the suit. The government appeared, objected to jurisdiction and lost, and counsel for the Army announced that the military would study the judgment (ICIR, 2022a; The Guardian, 2022). Established A consent rule designed to prevent surprise cannot honestly be invoked to delay a judgment the government litigated, lost and has known about for 1,735 days. Inference

One further passage of the judgment looked beyond the money. Justice Anya urged the federal government to seek a political resolution of matters involving Kanu and IPOB (Blueprint, 2022). Established That advice bound no one, and this file does not treat it as an order. It records that the judge who priced the invasion also looked past it to the conflict that produced it, and that the government he addressed chose to press the prosecution instead. Inference

§A Debt That Changed Hands

When the judgment was delivered, the debtor answered to President Buhari and the Attorney General, Abubakar Malami. Since May 29, 2023, the same debtor has answered to President Bola Tinubu. The award did not lapse at the handover, and nothing in the record suggests that the new administration has treated it as lapsed. Inference It has not been paid. Open

Each month the award stays unsatisfied, the federal government holds an order of its own judiciary in suspense by inaction alone, without filing a single document that would let a court review the choice. A judgment debtor that does not appeal, does not seek a stay and does not pay has made a decision. On January 19, 2022, a Nigerian judge priced the invasion of a home at N1 billion, and the government of the Federal Republic has left the bill on the table for more than four years.

“A judgment debtor that does not appeal, does not seek a stay and does not pay has made a decision.”

SOURCE NOTES

Blueprint. (2022, January 19). Pay Nnamdi Kanu N1bn, court orders FG. https://blueprint.ng/pay-nnamdi-kanu-n1bn-court-orders-fg/

BusinessDay. (2022, January). Legal practitioners react to N1bn judgment in favour of Nnamdi Kanu. https://businessday.ng/?p=608786

Central Bank of Nigeria v. Interstella Communications Ltd. (2018) 7 NWLR (Pt. 1618) 294 (SC).

Constitution of the Federal Republic of Nigeria, 1999 (as amended), ss. 34(1)(a), 35(1), 35(6), 36(5), 36(9), 37, 46, 150(1), 217(2)(c), 287(3).

The Guardian. (2022, January 20). Court awards N1b to Kanu, orders FG to tender apology. https://guardian.ng/?p=1646798

ICIR. (2022a, January 19). Court awards N1bn in favour of Nnamdi Kanu against Nigerian government. https://www.icirnigeria.org/court-awards-n1bn-in-favour-of-nnamdi-kanu-against-nigerian-government/

Jimoh, H. A. (n.d.). Using of section 84 of the Sheriffs and Civil Process Act 2004 by the Nigerian government to the denial of justice to judgment creditors. LawPavilion. https://lawpavilion.com/blog/using-of-section-84-of-the-sheriffs-and-civil-process-act-2004-by-the-nigerian-government-to-the-denial-of-justice-to-judgment-creditors-a-likely-invitation-to-anarchy

Nairametrics. (2022a, January 19). Court declares Nnamdi Kanu’s residence invasion unlawful, award N1 billion against FG. https://nairametrics.com/2022/01/19/court-declares-nnamdi-kanus-residence-invasion-unlawful-award-n1-billion-against-fg/

Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria (2004), s. 84.

TheCable. (2022a, January 19). Court orders FG to pay Nnamdi Kanu N1bn over rights violation. https://www.thecable.ng/?p=651852