By Aloy Ejimakor

“Another way of looking at this whole thing is rhetorical, and that is: Would any reasonable person have said that Kanu jumped bail if his failure to appear at his trial was because he was killed during the invasion?”

The intention of this piece is to examine the long-running notion that Mazi Nnamdi Kanu had jumped bail back in 2017 and thus deserved the extraordinary rendition that recently saw him to Nigeria.

Whether you like Kanu or not, everyone would agree that the only logical way of determining whether he jumped bail or not is to pedal back to the state of affairs before the military invasion of his homestead in September 2017. Here we go:

As of September 2017, Kanu was free on bail on a subsisting court order; his bail was not on personal recognizance but on a bond posted by three sureties; Kanu was neither judicially, nor administratively ordered to be re-arrested for breaching his bail or on account of any new charges filed; and his next hearing date was set for the next month, October 2017.

It is beyond argument that the invasion achieved a complete military routing of Kanu’s home and caused fatalities of twenty-eight people and injuries to many, including to Kanu and his parents, who were present and trapped at the premises during the invasion.

The invading forces also ‘captured’ an undetermined number of occupants of the premises, some of whom are now presumed dead as they have not been accounted for to date. Most significantly, Kanu himself was also unaccounted for until he emerged in Israel several months later.

The inevitable question that arises from the foregoing facts is this: What are the natural or foreseeable consequences of such a lethal military action against a defendant who was free on bail?

The following analysis will provide some answers:

At common law, a bail is simply a binding promise by an obligor/surety to produce a defendant in court whenever required to do so. The money paid by the surety to back up his promise becomes the bond that he stands to lose should he fail to produce the accused when required to do so by the State.

In other words, a bail is a written contract in which the State is the promisee, and the surety is the promisor. The defendant is merely the subject matter (or the res) of the contract. And the fundamental purpose or consideration is to have the accused appear in court by compulsion of the bond posted by the surety.

So, just like any other contract, a contract of bail is subject to universal rules of contract, including – in this particular case of Kanu – an implied covenant on the part of the Nigerian State that it will not in any way interfere with or impair the ability of the surety to produce Kanu whenever required to do so.

This includes the covenant that the State will not take any steps with the the defendant that might increase the risk of his flight from the jurisdiction or constrain the ability of the surety to produce the defendant at his trial.

So, when the Nigerian State which was prosecuting Kanu and thus has an abiding legal interest in his appearing for his trial, ordered her Army to invade Kanu’s home, it breached the basic covenant that required the Nigerian State (or the Federal government) not to create a situation that will make it impossible for the surety to produce Kanu in court.

And given that Kanu’s death, mortal wounding, capture or flight (escape) are the foreseeable consequences of said military invasion that can impact his availability to appear in court, the contractual doctrines of frustration and force mejeure will come into play.

It is trite that the occurrence of force majeure (or superior force) relieves one or both parties from the duty to perform contract obligations. The rationale is simple and that is: The force majeure event  – in this case, the military invasion – is a supervening event that was beyond the control or contemplation of the surety or even Kanu when the contract of bail was executed.

It is agreed universally that a military invasion is deemed a typical force majeure event that frustrates a contract under every human legal system. Nigeria (and now Kenya and the United Kingdom) are no exceptions. It becomes affirmative when a party to the contract is complicit in the force majeure.

It can also happen that, in certain scenarios such as this case of Kanu, a unique force majeure event will raise the prospects of another contract killer known as the  doctrine of frustration.

Under this time-honored doctrine, a contract (including a bail contract) will be deemed frustrated if its fundamental purpose (assuring appearance of Nnamdi Kanu in court) is destroyed to the point that his appearance in court becomes impossible.

In such event, the the promisor or surety in the bail contract will be discharged from his obligation to produce the accused. Now, you may ask: what is the position of the promisor- the Nigerian State in this whole saga?

A Nigerian State that had Kanu on trial, in the course of time released him on bail posted by another. Then, the same Nigerian State ordered its army to lethally invade Kanu’s home. During the invasion, Kanu was confirmed to be on location, trapped and in line of fire.

Kanu is human, so his human instincts to survive will instantly take over and being that the force arrayed against him is greater, that instinct can only be expressed through flight or escape from the immediate scene. And that’s exactly what happened.

And having succeeded in fleeing from the immediate scene of the attack, is it reasonable to expect Kanu not to flee from the broader scene that comprised of the territory of a Nigerian State that controls the Army that invaded his house?

The foregoing are but some of the material factual questions that would have been judicially answered in an adversarial setting, pursuant to an application, before anyone can come to the legal conclusion that Kanu had jumped bail. And such application was made.

But guess what?

The very Court that was supposed to calendar the application to be heard refused to do so and instead proceeded to decide, without taking any evidence, that Kanu had jumped bail, whereupon it issued the bench warrant that grounded the instant extraordinary rendition.

Had said application been heard, the Court – in place of its ruling that Kanu had jumped bail – could have ruled the opposite, and that is: That it is the Nigerian government and its Army that destroyed the ability or duty of Kanu to appear at his trial.

In the same vein, the Court could’ve also ruled that the Nigerian government was in contempt of Court by levying a lethal military invasion against a defendant (a ward of court), who was free on bail granted by such Court.

Therefore, it is against the basic canons of equity and fairness to now allow the Nigerian government to profit from its own wrong of causing Kanu to flee and then turn around to declare him a fugitive. A fugitive from what? Justice or death?

It becomes a double whammy when the same Nigerian government, instead of letting sleeping dogs lie or resorting to the due process of extradition, escalated its sins against Kanu by subjecting him to extraordinary rendition. Does two wrongs make a right?

Another way of looking at this whole thing is rhetorical and that is: Would any reasonable person have said that Kanu jumped bail if his failure to appear at his trial was because he was killed during the invasion?

Ejimakor, an American- trained Lawyer, writes from Alaigbo