Indigenous People of Biafra (IPOB) leader Nnamdi Kanu has not appeared at the Federal High Court, Abuja since April 25, last year, after Justice Binta Nyako granted him bail during his trial for alleged treasonable felony. The court has given his three sureties, including Senator Enyinnaya Abaribe, till June 26 to produce him or show cause why they should not be imprisoned. Alternatively, each surety could forfeit a N100million bail bond. Eric Ikhilae examines the case.
Where is Nnamdi Kanu? The leader of the Indigenous People of Biafra (IPOB) has not been coming to court after Justice Binta Nyako of the Federal High Court, Abuja granted him bail on April 25, last year, during his trial for alleged treasonable felony.
His absence from court since October 17, has put his sureties, including Senator Enyinnaya Abaribe, representing Abia South, at risk of imprisonment or forfeiture of a N100 million bond.
How it all started
Kanu and IPOB, rode into the nation’s consciousness in 2015 through Radio Biafra (RB), one of the group’s information outlets and the internet.
Audio and video recordings of their comments about Nigeria and its leaders and calls for the creation of the state of Biafra were freely broadcast on RB, YouTube, among other media.
Kanu, who was said to be based in the United Kingdom (UK), remained elusive until October 14, 2015 when operatives of the State Security Services (SSS) arrested him in a hotel in Lagos.
Kanu’s arrest
According to court documents, SSS operative, Temisan John, averred that his team arrested Kanu at the Golden Tulip Hotel, Lagos in company of a young girl.
John said: “On arrival at the hotel, the staff denied having Kanu in the hotel or having any knowledge of him, even when shown his photograph. The hotel’s guests manifest for about five days were also printed and the name was not found on any.
“However, relying on accurate intelligence, the team decided to conduct a physical search on all the hotel rooms, leading to the arrest of Kanu in Room 303, where he was caught hibernating with a young girl named Maryam Ibezimakor, with all his broadcasting and communication gadgets set for use.
“It was then discovered that Kanu checked in under the name Nwanekaenyi Ezebuiro. He was subsequently arrested and taken to the command headquarters.”
Another SSS operative, Mohammed Ahmed, who led the team that searched the home of Kanu’s associate, Benjamin Madubugwu, at Ubulusiuzor town, in Ihiala Local Government Area, Anambra State, said his team recovered “two pump action guns loaded with ammunition; one Emerald Pump Action gun with serial number: TS870-113-00463 and “one Delta Magnum Pump Action gun s/no: 501.”
Bail controversies
Upon his arrest, Kanu was brought before Magistrate Shuaibu Umsman of the Magistrates’ Court, Wuse Zone 2, Abuja. He was, in a First Information Report (FIR) filed before the court by the state, accused of engaging in “criminal intimidation” contrary to Sections 97(a) and (b) and 397 of the Penal Code. He was also accused of engaging in terrorism financing.
He was arraigned before the court on October 19, 2015. He pleaded not guilty to the information and was later granted bail in the sum of N2 million and a surety, who must be a civil servant of Grade Level 16.
Kanu’s lawyer, Egechukwu Obetta later accused the SSS of frustrating the bail granted his client by refusing to release him. Rather than release Kanu in compliance with the bail granted by the Magistrates’ Court, the SSS went before a Federal High Court, in Abuja with an ex-parte application marked: FHC/ABJ/CS/873/20015 for an order to further detain Kanu for 90 days.
Justice Adeniyi Ademola, on November 11, 2015, granted the application brought, among others, under Section 27(1) of the Terrorism Prevention (amendment) Act 2013.
Apparently contended with the order got from the Federal High Court, the DSS later discontinued the proceedings before the magistrates’ court and took no further steps on the case.
Kanu’s lawyers saw an opportunity in this and returned to Justice Ademola with a fundamental rights application to challenge their client’s continued detention when no charge was pending against him before any court.
Swayed by the applicant’s argument, Justice Ademola, in a ruling on December 17, 2015 ordered the DSS to release Kanu forthwith.
The judge agreed with the applicant that there were no justifiable reasons for the state to keep Kanu in custody when no charge was pending against him.
Arraignment at the High Court
Before any major steps could be taken in relation to Justice Ademola’s ruling, the state filed a six-count charge against Kanu and two others before the Federal High Court, Abuja. The others are: Benjamin Madubugwu and David Nwawuisi (said to be a Field Maintenance Engineer with MTN Nigeria Limited).
They were charged with, among others, criminal conspiracy, treason, illegal importation of goods and possession of fire arms.
At their first appearance before the Federal High Court on December 23, 2015, the defendants objected to being tried before Justice Ahmed Mohammed, whom the case was assigned.
When the case was called, Kanu sought the court’s permission to speak, which the judge granted without objection from his lawyer, Vincent Obetta and the Director of Public Prosecution of the Federation (DPPF), Muhammad Diri, who led the prosecution team.
Kanu said he lacked confidence in the court, and that based on information available to him he might not get a fair trial.
He said: “I will not sacrifice the due process founded upon the principle of natural justice on the altar of speedy release from detention. I will rather remain in detention than subject myself to a trial that amounts to perversion of justice. There have been several rulings delivered by competent courts of jurisdiction, which the SSS never respected.”
When asked to comment, Obetta agreed with his client and added that Kanu was at liberty to decide whether or not he has confidence in a court before which he was to stand trial.
Diri, however, objected and insisted that it was not within the rights of a defendant to pick the court where he must stand trial.
Diri relied on the provision of Section 396(2) of the Administration of Criminal Justice Act (ACJA) 2015 to argue that a defendant could only object to a charge after pleading to it. He urged the judge to proceed with the planned arraignment of the defendants.
Judges’ withdrawal
Ruling, Justice Mohammed overruled Diri’s objection and held that a defendant has the right to decide before which court he/she should be tried.
“Justice is rooted in confidence. If a party has no confidence in this court, he has the liberty to say so. If it was the prosecution, who did not have confidence in the court, will it not say so?
“Section 396(2) of the ACJA has nothing to do with the nature of objection raised by the first defendant. He is not challenging the competence of the charge, but his lack of confidence in the court to try him,” the judge said and withdrew from the case.
On September 26, 2016 another judge of the Federal High Court, Abuja, Justice John Tsoho, who the case was reassigned, also withdrew following a petition by Kanu’s lawyers to the National Judicial Council (NJC).
The lawyers accused the judge in the petition of making conflicting decisions in an application by the prosecution to be allowed to shield its witnesses from public view. To the defence, such ruling, which allowed the prosecution to hide its witnesses’ identity, would not guaranty fairness and justice for the defendants.
Ruling on September 26, 2016 Justice Tsoho said: “I deem it unnecessary to allow the learned prosecution lawyer, S M. Labaran to make any response. Luckily, the procedure would have been to await the response of the NJC.
“This court is minded not to prolong the issue, especially since they (the defence team) did not state which court it wants to handle its case. I have disqualified myself from sitting over this case.
“Therefore, the case file shall be transferred to the office of the Chief Judge of the Federal High Court. This shall be the position of this court even if the NJC decides otherwise.”
Re-arraignment
The case was again re-assigned to Justice Binta Nyako (also of the Federal High Court, Abuja) whose court Kanu and three others were arraigned on an amended charge of 11 counts, with the addition of a new defendant, Chidiebere Onwudiwe, described as IPOB’s National Co-ordinator.
They are, in the amended charge, marked: FHC/ABJ/CR/383/2015, charged with terrorism, treasonable felony, managing an unlawful society, publication of defamatory matter, illegal possession of firearms and improper importation of goods.
In a ruling on December 1, 2016, Justice Nyako rejected their bail applications on the grounds that the offences which they were being tried “are very serious in nature”, and therefore, not ordinarily bailable.
She noted that the court has to exercise its discretion one way or the other, irrespective of what the charge is, but that some of the charges against the defendants could attract life imprisonment if proved by the prosecution.
The judge dismissed the contention by the defendants that President Muhammadu Buhari had openly directed that they should not be released on bail. She said the President, as a Nigerian citizen, was at liberty to exercise his right to freedom of speech.
The judge said the President’s comment was incapable of influencing the decision of the court. She said the defendants did not place before the court any new fact or law capable of persuading it to reverse an earlier ruling (by Justice Tsoho) where they were equally denied bail.
Justice Nyako said: “The offences are serious in nature and carries very severe punishment if proven. I hereby, therefore, refuse bail of the applicants. But in the alternative, I hereby order accelerated trial of this matter to almost commence immediately, but not later than two months.”
The defence rejected move by the prosecution to open its case. Instead, it challenged the competence of the charge, arguing that the proof of evidence submitted by the prosecution did not support the charge.
In a ruling last March 1, Justice Nyako upheld the defence’s argument in relation to some counts in the charge and struck out six out of the 11 counts.
The judge struck out counts 3,5,7,9,10 &11, relating to commission of acts of terrorism, improper importation of goods and managing unlawful society, leaving counts relating to criminal conspiracy and treasonable felony – counts 1, 2,4, 6 and 8, which relate to offences of conspiracy to commit acts of treasonable felony and other related offences.
Shortly after the counts in the charge became reduced to five, Kanu’s lawyer approached the court again with another application for bail. This time, he raised the issue of his client’s health, which the judge later agreed to.
In a ruling last April 25, Justice Nyako rejected the objection by the prosecution and granted bail to Kanu, with the exclusion of other defendants. The judge said her decision to grant bail was based on health grounds.
In less than two weeks, Kanu was out of custody, having satisfied the bail conditions.
Controversy over Kanu’s
whereabouts
The prosecution was to open its case on October 17. But when parties got to court, the other defendants were present with the exception of Kanu.
Lead prosecution lawyer, Shuaibu Labaran noted that although the case was scheduled for commencement of trial, no proceedings could be conducted in the absence of one of the defendants.
Labaran recalled that Kanu was granted bail on April 25, 2017 on health grounds and that “the court gave an order that he should go and attend to his health challenge and report back to court on monthly basis.
He added that the three men, who stood sureties for Kanu should be ordered to appear before the court to show cause why the bail bond of N100 million, which each of the sureties signed, should not be forfeited and or, they should be committed to prison for failing to produce the 1st defendant.
Responding, Ifeanyi Ejiofor, who represented Kanu, denied knowledge of his client’s whereabouts. “Ever since the Army raided his home on September 11 and 14, 2017, we have not seen the first defendant. I cannot tell if he is dead or alive,”Ejiofor said, urging the court to reject Labaran’s application in relation to the sureties.
Also reacting, Ogechi Ogbonna, who appeared for Abaribe, said his client was without any information regarding Kanu’s whereabouts.
Ogbonna informed the court about a motion he filed seeking, among others, an order discharging Abaribe as Kanu’s surety on the grounds that he was no longer interested in offering his consent to serve as Kanu’s surety in view of recent happenings. However, Ogbonna was silent on what his client meant as “recent happenings.”
At that point, Justice Nyako told Ogbonna that at the moment in the case three options were opened to Abaribe and other sureties to the 1st defendants, which they could choose one.
The first, according to the judge, was either Abaribe remains a surety or produce the first defendant in court and thereafter hands off from being his surety.
The second was for Abaribe to forfeit the N100m bail bond if he could not produce Kanu in court, and third, that the court gives Abaribe time to produce Kanu in court.
Ogbonna elected to work with the third option, following which the judge ordered the sureties to appear in court to show cause why bench warrant should not be issued against the first defendant, as prayed by the prosecution, or why they should not forfeit their N100m bond each or be committed to prison for failing to produce Kanu.
Before further proceedings in the criminal trial, Justice Nyako heard and decided the case brought by IPOB against the Chief of Army Staff (COAS) over his (Kanu’s) purported disappearance.
IPOB had by the suit, sought “an order of Habeas Corpus ad subjiciendum, commanding the respondent (COAS), to produce the applicant in court.”
It was claimed in the supporting affidavit that no one has seen or heard from Kanu since September 14, 2017, when soldiers of Nigerian Army allegedly 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”.
The COAS denied Kanu’s claim in a counter-affidavit, and argued that contrary to claims by the applicant, soldiers, who were deployed in the Southeast for ‘Operation Python Dance II, did not have any contact, whatsoever, with Kanu on September 12 or 14, or anytime thereafter as alleged.
The respondent added that the Nigerian Army did not, at any time, arrest or take Kanu into custody within the period the military operation lasted.
The COAS also denied the allegation that soldiers invaded the IPOB leader’s house in Afara-Ukwu Ibeku, Umuahia, Abia State.
Justice Nyako gave her verdict on the case on January 27, 2018 and dismissed it.
The judge observed that the applicant failed to provide sufficient and credible evidence to convince the court that Kanu was indeed in the custody of the Nigerian Army.
Justice Nyako said: ”The doctrine of last seen”, which the applicant relied upon, even though applicable in murder cases, has no statutory backing.
The judge, who noted that Kanu was listed as the applicant in the case, said she was surprised that someone, who is to be missing, was the one seeking reliefs from the court.
She said the supporting affidavit filed by Kanu’s lawyer, Ifeanyi Ejiofor, contained criminal allegations against the Nigerian Army that must be proved beyond reasonable doubt”.
The judge added: “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,” Justice Nyako said.
Shortly after the court’s ruling, Ejiofor urged the court to guide parties on how to proceed with the criminal case.
In response, 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 the 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,” Justice Nyako said and adjourned to February 20, 2018.
When parties returned to court on February 20, Labaran noted that Kanu’s continued absence was harmful to the progress in the case since it was a joint trial.
He suggested that the trial be separated to allow the trial of Kanu separately whenever he turns up.
The defence agreed with Labaran’s suggestion, following which the judge adopted it in a ruling and adjourned for the commencement of the separate trial of the other defendants.
In relation to Kanu, the judge restated her order that the sureties should show cause why they Kanu was absent in court, failing which they either go to jail or forfeit their bail bond.
The separate trial of Kanu’s associates commenced on March 22, during which the prosecution, before opening its case, re-arraigned the defendants on an amended charge, which now included Bright Chimezie as a defendant.
Bright Chimeze, Benjamin Madubugwu, Chidiebere Onwudiwe and David Nwawuisi are now being tried separately. The prosecution called its first witness, whose identity was kept from the public, but was simply identified as “AB”. Further hearing in that case has been scheduled for May 21.
However, when parties returned to court on March 28, Abaribe and his co-sureties were present.
Labaran informed the court that the business of the day was for the sureties to show cause why they should not forfeit the bail bond or be imprisoned for failing to produce Kanu in court as ordered.
In a ruling, Justice Nyako ordered that an enrolled copy of the court’s order be served on Abaribe and his co-sureties to enable them produce Kanu on the next day or show cause why they should not be jailed or forfeit their bail bond.
The judge adjourned to June 26. When the court resumes on the next date, beyond the affidavits to be filed by Abaribe and his co-sureties in response to the order for them to show cause, the court is also expeted to look at a fresh applications filed the prosecution
The application seeks, among others, the revocation of Kanu’s bail on the grounds that he has allegedly breached the bail conditions. It also prays for the issuance of bench warrant for Kanu’s arrest should the sureties fail to produce him.
What options for Abaribe and others?
Lawyers spoke cautiously on the issue, noting that since it was still a pending matter, it was tidy to allow the court reach a conclusion one way or the other.
Dr. Ben Chukwueke said the options opened to the sureties are as stated by the trial judge on October 17, 2017.
He said:“To me, I don’t think the sureties can get out of this without losing something should they fail to produce the defendant, who they stood surety.
“The judge has given them hints about what to expect. Although I cannot readily recall any similar cases before now, but I think that is why the sureties are required to sign bail bond,” he said.
Abudllahi Usman said there was nothing wrong if the sureties were imprisoned to serve as deterrent to others, who cannot account for individuals they stood surety for.
“The men in this case are enlightened enough to know the consequences of their action. If you agree to stand surety for a defendant, you know it is your responsibility to account for him/her if he/she absconds.
“How do you account for an absconding defendant when you are unable to produce him? The judge knows what to do. There are options, including them forfeiting the N100m bond they each signed.
“Without sounding sub judice here, I hope the judge will not be swayed by the status of the men involved in this case to become too lenient.”
