A Federal High Court in Abuja, on Friday, turned down request by the Indigenous People of Biafra, IPOB, to order the Chief of Army Staff, Lt.-Gen. Tukur Buratai, to produce their leader, Nnamdi Kanu.
In a ruling that was delivered by Justice Binta Nyako, the court dismissed an application that was filed by a team of lawyers representing the IPOB leader, which prayed the court to compel Buratai to produce their client, either dead or alive.
The IPOB lawyers, led by Ifeanyi Ejiofor, told the court that they have not seen or heard from their client since September 14, 2017, when the Nigerian Army invaded his house, “on a murderous raid, where life and mortar bullets were fired on unarmed and defenceless populace, leaving 28 persons dead and abducting many.”
Pursuant to section 40 of the Federal High Court Act, F12, LFN 2005 and section 6(6) (1) (4) of the 1999 constitution, as amended, Kanu’s lawyers applied for, “an order of Habeas Corpus ad subjiciendum, commanding the Respondent (Buratai), to produce the Applicant in Court.”
In a counter-affidavit filed in opposition to the suit, Buratai told the court that Kanu was never in custody of the Nigerian Army.
The army chief maintained that contrary to claims in the suit, soldiers who were deployed to the South-East for ‘Operation Python Dance II, did not have any contact whatsoever with Kanu on September 12 or 14, or anytime thereafter as alleged.
The Chief of Army Staff told the court that the Nigerian Army did not at any time arrest or took Kanu into custody within the period the military operation lasted, even as he denied allegation that soldiers invaded the IPOB leader’s house in Afara-Ukwu Ibeku, Umuahia, Abia State.
A colonel attached to the Chief of Army Staff’s office in the Army Headquarters, Abuja, Col. A.A Yusuf, who deposed to the counter-affidavit on behalf of Buratai, said the alleged invasion of Kanu’s house was totally false.
In her ruling, Justice Nyako held that Ejiofor failed to convince the court that Kanu was seen with soldiers at any time.
She pointed out that, “the doctrine of last seen,” which the applicant relied upon, even though applicable in murder cases, has no statutory backing.
The Judge noted that Kanu was listed in the suit as the main applicant.
According to the judge, she was surprised that someone that was said to be missing was the one seeking reliefs from the court, insisting that the lawyers ought to have rather commenced the action “in the name of the applicant.”
Nyako said affidavits Ejiofor presented before the court contained criminal allegations against the Nigerian Army that must be proved beyond reasonable doubt.
“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 held.
When Ejiofor demanded to know from the court what the next line of action would be in respect of Kanu’s pending trial, since his whereabouts has remained unknown.
Justice Nyako explained, “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 that date.”