ILLEGAL EXTRA-TERRITORIAL ABDUCTIONS AND THE CONCEPT OF MALA CAPTUS, BENE DETENTUS

Abstract

As a general principle, baring a willingness to conduct an in-absentia trial of a fled fugitive, physical presence of the fugitive is inevitable to assertion and exercise of personal jurisdiction over him for his trial. The abduction of BritishNigerian citizen, Mr Nnamdi Kanu from Nairobi, Kenya for trial in Abuja, Nigeria provides the context for this paper in which we have undertaken interrogation of municipal and international law to discover the practice of municipal courts assuming and exercising trial jurisdiction over victims of illegal extraterritorial abduction. In part 2, we considered the principle of territorial inviolability in international law, and the proposition that every State, to the exclusion of every other state, exercises dominion over all persons on its territory. Part 3 examined the status of forceful extra-territorial abductions in international law, including abductions carried out by state agents and nonstate agents respectively, and when abductions by non-state agents could be attributed to the state. Part 4 examined the traditional Anglo-American doctrine of mala captus bene detentus, which stands for the proposal that courts may assert in personam jurisdiction without inquiring into the means by which the presence of the defendant was secured. In conclusion, part 5 suggests that there is sufficient precedent for the Nigerian court to continue with the proceedings in the current matter of Mr Kanu which is before it.