A Federal High Court in Abuja has scheduled its decision for December 13 in a suit seeking to compel the Chief of Army Staff, Lt.-Gen. Tukur Buaratai to account for the whereabouts of the leader of the proscribed pro-Biafra group, Indigenous People of Biafra (IPOB), Nnamdi Kanu.
In the suit marked: FHC/ABJ/CS/908/20017 filed in Abuja in Kanu’s name by his lawyer, Ifeanyi Ejiofor, the plaintiff claimed among others, that the soldiers, who allegedly invaded Kanu’s father’s house on September 14 this year, took him away, a claim Buratai denied.
The trial judge, Justice Binta Nyako chose the date for the court’s decision in the case after entertaining the final submissions from parties yesterday.
Arguing his client’s case Friday, Ejiofor stated that contrary to Buratai’s denial, the soldiers that stormed Kanu’s father’s house had a direct contact with him on September 14.
He said the soldiers that were in Kanu’s hometown for ‘Operation Python Dance II’, a military exercise aimed at quelling separatist agitation in the South-East, had the last contact with him.
He exhibited photographs, which he claimed showed scenes of destruction at Kanu’s house during the purported invasion by the soldiers. He urged the court to “invoke the doctrine of last seen” to compel the Chief of Army Staff to produce Kanu.
Ejiofor added: “The exhibits before the court point to the fact that the personnel of the respondent (the Chief of Army Staff) had the last contact with the applicant (Kanu). It is clear that the army had the last contact with the applicant.”
He contended that the grounds, on which the COAS hinged his notice of preliminary objection, to urged the court to decline jurisdiction to hear the suit was unfounded in law.
Ejiofor said the issue of locus standi raised by the respondent on the basis of speculation that Kanu was dead was of no moment in a suit for an order ofhabeas corpus.
Responding, lawyer to Buratai, Akinlolu Kehinde (SAN) prayed the court to dismiss the suit on the grounds that it was “riddled with conjecture, speculation, assumption and unfounded opinions”.
Kehinde said: “We urge your lordship not to spend judicial time on hearing the application on merit and to dismiss it. My lord is not allowed to act on conjecture and speculation which the application is founded on.”
The Senior Advocate contended that contrary to the plaintiff’s argument, soldiers never had any contact with the IPOB leader.
Kehinde further contended that the plaintiff was wrong to have initiated the suit via a writ of habeas corpus, because such process could not be deployed, under the law, by the plaintiff, who is not certain that Kanu was in the custody of the Nigerian Army.
According to him, “The writ of habeas corpus is only used when it is certain that the applicant is in the custody of the respondent; not in this instance case when the application is speculating that the applicant is the custody of the applicant or that the applicant has not been seen.”
Citing part of the plaintiff’s affidavit supporting the suit, Kehinde noted that plaintiff admitted that the search for Kanu conducted by family members had not yielded fruit.
Kehinde added: “That is to buttress the fact that there is no certainty. The army never conceded that he is in their custody and the onus has shifted to and remained with the applicant to prove that he is in their custody.
“When there is doubt as to the custody of the applicant, the writ of habeas corpus is not applicable.”
According to Kehinde, the court could only invoke the doctrine of “last seen” in a criminal trial involving murder or culpable homicide whereby the court would impose duty on the accused persons to account for the death of the deceased.
