The court, in a ruling that was delivered by Justice Binta Nyako, 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 lawyers, led by Mr. 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”.
However, in a counter-affidavit he filed in opposition to the suit, Buratai told the court that Kanu was never in custody of the Nigeria Army.
He 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’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.
The Army boss told the court that his men only chased a truck he said was laden with arms and explosives of different kinds, into a compound he said was later discovered to belong to Kanu and his father.
Meantime, ruling on the matter on Friday, Justice Nyako held that no evidence was placed before the court to prove that Kanu was in Army custody, adding that Ejiofor failed to convince the court that Kanu was seen with soldiers at any time.
She said “the doctrine of last seen”, which the applicant relied upon, even though applicable in murder cases, has no statutory backing.
Besides, the Judge noted that Kanu was listed in the suit as the main applicant.
Justice Nyako said she was surprised that someone that was said to be missing was the one seeking reliefs from the court, adding that the lawyers ought to have rather commenced the action “in the name of applicant”.
She further held that affidavits Ejiofor’s team filed 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.
Immediately the ruling was delivered, 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.
Replying Ejiofor, Justice Nyako said: “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”, the Judge added.
The court had earlier fixed February 20 for continuation of Kanu’s trial.
The IPOB leader is facing a five-count treasonable felony charge the Federal Government preferred against him and four other pro-Biafra agitators, Chidiebere Onwudiwe, Benjamin Madubugwu, David Nwawuisi and Bright Chimezie.
Already, Senator Enyinnaya Abaribe who was one of the three persons that stood surety for the IPOB leader has applied to be discharged by the court, insisting that he lacks the capacity to produce the defendant for continuation of his trial.
The court had on October 17, 2017, ordered Abaribe, a Jewish High Priest, Emmanu El- Salom Oka BenMadu, and an accountant, Tochukwu Uchendu, to produce the IPOB leader or face jail term/forfeiture of N100million they each deposited as bail bond.