Justice Binta Nyako of the Federal High Court sitting in Abuja, on Friday, refused to grant an application seeking the Chief of Army Staff, Lieutenant-General Tukur Buratai, to produce in court, the missing leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu.
IPOB had claimed the Army knew the whereabouts of Kanu as he disappeared after the Operation Python Dance launched by the Army in Abia state.
Delivering ruling on the application filed on behalf of IPOB by Ifeanyi Ejiofor, Justice Nyako held that the applicant could not provide any evidence to buttress its allegation against the Nigerian Army.
The Court was of the opinion that Ejiofor failed to convince it that Kanu was seen with soldiers at any time before and after the Operation Python Dance.
“The doctrine of last seen, which the applicant relied upon, even though applicable in murder cases, has no statutory backing,” Justice Nyako stated.
The trial judge held that the allegation made by Kanu’s lawyer against the Army is criminal in nature, and therefore requires to be proven beyond reasonable doubt.
In addition, Justice Nyako observed that Kanu was listed in the suit as the main applicant.
She expressed surprise that someone said to be missing was the one seeking reliefs from the Court.
The Court said Kanu’s lawyer ought to have rather commenced the action “in the name of applicant”.
“Has the applicant placed enough evidence to show that the respondent was the last to see the applicant?
“Was there any evidence that he was last seen with even one soldier?
“The onus of proof will not shift from the applicant to the respondent except the applicant is able to prove that he was last seen by the respondent.
“This they have failed to do.
“This application fails and it is hereby dismissed. Be ready for your case”, the Judge told Kanu’s counsel.
Inquiring from the Court on the next line of action, Justice Binta told Ejiofor, “As far as I am concerned, the applicant is on bail. Was he not released on bail based on an undertaking by sureties?
“The sureties guaranteed to produce the applicant in Court for his trial, so three of them should produce him.
“They made an undertaking and deposed to the fact that they will produce him to stand trial.
“If there is any reason they cannot produce him, they should tell me on February 20, the next adjourned date.”
Kanu’s application, dated September 27, 2017, was filed pursuant to Section 40 of the Federal High Court Act, F12, Laws of Federation of Nigeria 2005, Section 6(6) (1) (4) of the 1999 Constitution, as amended.
In the motion on notice filed against the Chief of Army Staff (respondent), Kanu (applicant) through his Counsel, Ifeanyi Ejiofor, is seeking an order “An order of Habeas Corpus ad subjiciendum, commanding the respondent, to produce the applicant in court.
In other words, a writ Habeas Corpus ad Subjiciendum is directed to someone detaining another person and commanding that the detainee be brought to Court.
Ejiofor wants the command to be issued on the Army, to produce the Kanu in court, particularly now his substantive criminal trial is coming up on the 17th day of October 2017.
Ejiofor Esq is leading Maxwell Okpara Esq., Chudi Igwe Esq, Chinwe Umeche (Miss), Habila G. Turshak Esq, P. M., Umegborogu Esq and Augustine Ezeokeke Esq.
In the statement of claim in support of the application for prerogative of writ Habeas Corpus and Subjiciendum, Kanu is said to be the leader of the Indigenous People of Biafra (IPOB) who resides in his Home Town Afara-ukwu Ibeku, Umuahia, in Abia State, Nigeria.
Ejiofor predicated his application on the following grounds.
“The applicant is the leader of the Indigenous People of Biafra (IPOB), a group largely made up of People from South-Eastern part of the Country, mostly Biafra extraction; who are at all times materials lawfully exercising their constitutionally guaranteed rights to self determination, freedom of Association and peaceful Assembly.
“That the applicant was arrested on the 14th day of October, 2015 and consequently arraigned in court along other defendants on the 20th day of January, 2016, on 11 (Eleven) count charge of treasonable felony, conspiracy to commit treasonable felony, belonging to an unlawful society, importation of goods, publication of libelous matters, etc.
However, six out of the eleven count charge had since the 28th day of March 2017, been struck out by the court, including allegation of belonging to an unlawful society.
On the 25th day of April 2017, Kanu was granted bail by His Lordship Hon, Justice Binta Nyako of the Federal High Court Abuja.
Kanu, still enjoying the bail granted him by the Court seized of the matter, when the prosecution filed an application on the 25th day of August 2017, requesting the Court to revoke the bail granted him.
Hearing on the matter is slated to commence on the 17th day of October 2017.
On the 12th September, 2017, Ejiofor stated that the Nigeria military soldiers, acting under express command handed down by the respondent, violently invaded the Kanu’s home in Afaraukwu, Ibeku, Umuahia Abia state, wherein scores of his relatives were brutally wounded and many killed.
“On 14th day of September, 2017, the Nigerian military led by soldiers of the Nigerian Army invaded the Applicant’s house on a murderous raid, where life and mortar bullets were fired on unarmed and defenseless populace, leaving 28 persons dead and abducting many.
“The Applicant who was in the house during this bloody onslaught by the Soldiers, has not been heard from or seen after this bloody attack in his home by the Agents of the Respondent since the 14th day of September 2017.
“That the invading Soldiers in their desperate bid to ensure that the Applicant is caught in the attack climbed stairs to his bedroom upstairs to shot him; walls of his bedroom were riddled with bullets.
“The invading Soldiers who had direct contact with the Applicant on this fateful day (14th day of September 2017) should be in a position to produce the Applicant before the court.
“It is either the Respondent’s rampaging Soldiers abducted the Applicant during this raid or must have killed him in the process,” Kanu’s lawyer claimed.