Delivering judgment on the application filed on behalf of Kanu, Justice Binta Nyako, ruled that there was no evidence showing that the IPOB leader was in the custody of the Nigerian Army as contended in the suit.
Justice Nyako noted that Kanu was the applicant who instituted the suit, wondering how a person declared missing was the one praying the court to make the orders sought in the suit.
The judge explained that the suit should have been commenced “in the name” of Kanu rather than listing him as the applicant.
She held that affidavits filed in support of the suit by the Ifeanyi Ejiofor-led legal team were laced with criminal allegations against the Nigerian Army.
The judge explained that such allegations required to be proven beyond reasonable doubt, which the applicant’s lawyers failed to do.
She ruled, “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.”
Ejiofor with some lawyers acting on Kanu’s behalf, had on September 27, 2017, filed an originating motion of a ‘habeas corpus’ marked FHC/ABJ/CS/908/20017, praying for an order directing Buratai to produce Kanu in court.
Part of the 12 grounds of the motion, stated that “rampaging soldiers” under the Chief of Army’s command allegedly invaded Kanu’s house in Afara-Ukwu Ibeku, Umuahia, Abia State on September 14, 2017, abducted and possibly killed the IPOB leader and his other relatives in the process.
The lawyers claimed that soldiers had a direct contact with Kanu on September 14, 2017, when they allegedly invaded the IPOB leader’s house “on a murderous raid, where life and mortar bullets were fired on an unarmed and defenceless populace, leaving 28 persons dead and abducting many.”
“It is either the respondent’s rampaging soldiers abducted the applicant during this raid or must have killed him in the process,” part of the grounds of the motion read.
Ejiofor, who referred to photo exhibits allegedly showing scenes of destruction at Kanu’s house during the alleged invasion by the soldiers, urged the court to “invoke the doctrine of last seen” and compel the Chief of Army Staff to produce Kanu.
But arguing the Chief of Army Staff’s objection to the suit, Mr. Akinlolu Kehinde (SAN), urged the court to dismiss the suit, which he said was “riddled with conjecture, speculation, assumption and unfounded opinions”.
He said contrary to the contention in the suit, soldiers had no contact with Kanu during the said operations.
He argued that the application, not being certain that Kanu was in the custody of the Nigerian Army, “the writ of habeas corpus cannot be used.”
He also argued that the court could only invoke the doctrine of “last seen” in a criminal trial involving murder or culpable homicide whereby the court would impose a duty on the accused persons to account for the death of the deceased.
He also faulted the competence of the suit and other processes allegedly filed by the defendant outside the time stipulated by the court’s rules.
Justice Nyako agreed with the Chief of Army’s lawyer on Friday to the effect that “the doctrine of last seen” was only applicable in a murder case.
Justice Nyako is the same judge before whom Kanu and others are being prosecuted by the Office of the Attorney-General of the Federation on charges of treasonable felony.
Following Kanu’s absence from the proceedings of the criminal trial on October 17, 2017, some weeks after the alleged military invasion of his home, the judge ordered Kanu’s sureties, including a serving senator, Eyinnaya Abaribe, to account for the defendant’s whereabouts.
On Friday, after the judge delivered her judgment, Ejiofor asked about the status of the criminal trial since Kanu was still missing.
In response, Justice Nyako said the sureties were duty-bound to produce the IPOB leader in court at the next hearing date on February 20.
She 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 would produce him to stand trial.
“If there is any reason they cannot produce him, they should tell me on that date.”