TheCable

Femi Falana, human rights activist, says filing an appeal against a court judgement does not suspend its order.

Falana was reacting to the attempt of Femi Adesina, presidential spokesman, to justify the continuous detention of IbrahIm El-zakzaky, leader of the Islamic Movement in Nigeria (IMN).

Adesina had said El-Zakzaky was still in detention because the presidency filed an appeal against the federal high court order for the release of the IMN leader.

The senior advocate of Nigeria (SAN) said the “mere filing of an appeal does not operate as a stay of action”, adding that the appeal filed has not suspended the orders of the court for the release of Zakzaky from “unlawful detention”.

He added that the order of the court cannot be stayed pending the determination of an appeal.

“Before now, the federal government had invoked ‘national security’ to justify its contemptuous conduct. Apparently embarrassed by the allegation of disobedience of court orders, the federal government has now turned round to give the misleading impression that the filing of an appeal is a justification for not releasing the Elzakzakys from detention, ” Falana said.

“With respect, it is trite law that the mere filing of an appeal does not operate as a stay of action in respect of the judgment of a court. In the instant case, the filing of the appeal referred to by Mr. Adesina has not varied or suspended the orders of the federal high court for the release of the Elzakzakys from unlawful detention.

“It may interest Mr. Adesina to know that the order of a court for the release of a citizen from custody cannot be stayed pending the determination of an appeal. Hence, the federal government did not deem it fit to file any motion for stay of execution of the orders of the federal high court.

“Even under the defunct military junta in Nigeria, the Court of Appeal dismissed the motion for stay of execution in the case of Nigerian Army vs Mowarin (1992) 4 N.W.L.R. (pt 235) 345.

“According to Kalgo J.C.A. (as he then was): “the refusal of the application will not cause any injury to the applicant, but if the application is granted, the respondent will continue to suffer personally in detention after the court has declared her detention unlawful ab initio.”

He, therefore, advised the federal government to comply with the court order without any further delay “since neither the court of appeal nor the high court had stayed the orders for the release of Zakzaky.”