The leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, has asked the Federal High Court in Abuja to strike out the amended charge against him by the Nigerian government.
The government of President Muhammadu Buhari had recently amended the charge against the IPOB leader raising them to seven counts as against the five counts he was previously answering to, bordering on treasonable felony and terrorism.
According to Kanu in a preliminary objection filed by his lawyers led by Ifeanyi Ejiofor, the charge as constituted does not disclose a ‘prima facie’ case against him.
He also asked the court to use its powers and duty to stop his prosecution which he claimed creates abuse and injustice.
The IPOB leader added that counts, as constituted in the amended charge, are incompetent and brought under a non-existent law.
Full details are below:
AN ORDER striking out/quashing and or dismissing the 7-count Amended Charge, specifically, counts 1 to 7 preferred against the Defendant/Applicant in the Amended Charge No: FHC/ABJ/CR/383/2015, for the reason that the counts, as constituted, are incompetent and thus, deprives the Honourable Court of jurisdiction to entertain the same.
2. AN ORDER of the Honourable Court discharging and acquitting the Defendant/Applicant of all the counts in the 7-Count Amended Charge preferred against the Defendant/Applicant, upon the same being struck out/quashed and or dismissed.
FURTHER TAKE NOTICE THAT THE OBJECTION is predicated on the following grounds, namely;
i. That the 7 Counts preferred against the Defendant/Applicant in the Amended Charge is incompetent, and consequently the Honourable Court lacks the requisite jurisdiction to entertain the same.
ii. That allegations in the 7-count Amended Charge, particularly counts 1, 2, 4, 5, 6 and 7, is that the Defendant/Applicant made a broadcast in London, United Kingdom, but that same was monitored in Enugu and in other parts of Nigeria.
iii. That no allegation was made in any of the Counts of the Amended Charge that the alleged sundry acts of the Defendant/Applicant were physically carried out by him, within the geographical space or territorial boundaries of Nigeria.
iv. That the only element requisite to constitute and found liability for incitement is the actual words allegedly uttered by the Defendant/Applicant.
v. That the alleged acts ascribed to the Defendant/Applicant as constituting offences, were not made up of several elements. See Section 12 of the Criminal Code Cap 38 LFN 2004. That the element of alleged inciting statements did not occur anywhere within the territorial boundaries of Nigeria. Further, that the only element requisite to constitute liability for incitement allegedly occurred wholly and entirely in London, United Kingdom, and not anywhere within Nigeria.
vi. That jurisdiction is extrinsic to adjudication. It is conferred on a Court, aliunde. It is not intrinsic. See SYLVESTER OKONKWO v. HON. EBELE OBI & ORS (2019) LPELR-48183(CA); ALL PROGRESSIVES CONGRESS v. HON. GODWIN ETIM JOHN & ORS (2019) LPELR-47003(CA).
vii. That the principal legislation that governs the trial of offences in Nigeria, namely, the Criminal Code Act, Cap C38, LFN, 2004, in Section 12 thereof, clearly delineates the jurisdiction of a Court adjudicating over a crime. That the provisions of Sections 93-96 of the Administration of Criminal Justice Act, 2015, does not purport to displace any part of Section 12 of the Criminal Code Act. Neither does the Terrorism Prevention Amendment Act of 2013.
viii. That as the whole elements necessary to constitute incitement in the alleged several broadcasts of the Defendant/Applicant occurred in London, United Kingdom, and Not in Nigeria, the Court in Nigeria has no jurisdiction to try the Defendant/Applicant on any charge founded on any such alleged incitement, even if the Defendant/Applicant enters the geographical boundaries of Nigeria.
ix. That although the Terrorism (Prevention Amendment) Act, 2013 purports to invest the Act with extra territorial jurisdiction, it in no way clothes the Honourable Court with the jurisdiction to try the Defendant for the said offences allegedly committed in London. For the extra territorial jurisdiction of the Terrorism (Prevention Amendment) Act, 2013 to apply, the principle of double criminality must be established.
x. That the alleged acts for which the Defendant was charged, do not constitute terrorism offences in London, United Kingdom, where they were allegedly committed.
xi. That Section 1(A)(2) of the Terrorism (Prevention Amendment) Act, 2013, imposes an obligation on the Attorney General of the Federation, to maintain International co-operation for compliance with International Treaties on terrorism.
xii. That the international co-operation and compliance envisaged in the said Section 1(A)(2) of the Act, presupposes, amongst other things that due process of law must be followed at all times, which also includes, that the Defendant in the instant charge must be rendered lawfully from any territory outside Nigeria.
xiii. That the Defendant was abducted from Kenya and consequently extraordinarily rendered to Nigeria, without firstly subjecting him to extradition proceedings in Kenya, in violation of all known international conventions and treaties on extradition.
xiv. That the Defendant cannot be arraigned and tried on the 7-count Amended Charge, when he was not lawfully rendered to Nigeria and, consequently brought before the Court.
xv. That prosecuting the Defendant on the 7-count Amended Charge, would amount to allowing the Complainant to benefit from their illegality and wrongdoing.
xvi. That he who comes to equity must come with clean hands, and no party should be allowed to benefit from his wrong doing.
xvii. That the extraordinary rendition of the Defendant, robs the Honourable Court of the requisite jurisdiction to try him on the 7-Count Amended Charge.
xviii. That counts 1, 2 and 3 of the Amended Charge were brought under a non-existent law.
xix. That Count 2 of the Amended Charge is legally deficient because it rests on freedom of speech protected by the Nigerian Constitution, section 39, and international law, Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant of Civil and Political Rights.
xx. That count 3 of the 7-count Amended Charge relates to an offence allegedly committed in Ubuluisiuzor, in Ihiala Local Government Area of Anambra State, outside the territorial jurisdiction of the Honourable Court.
xxi. That counts 5, 6 and 7 of the Amended Charge are ambiguous and do not disclose any offence known to law.
xxii. That Count 6 of the Amended Charge is also fatally deficient because it fails to allege any acts or words by Defendant/Applicant in furtherance of an act of terrorism as defined by the Terrorism Prevention Act of 2011. Additionally, the allegedly wrongful words uttered by Defendant/Applicant constitute free speech protected by the Nigerian Constitution, Article 39, and by Article 19 of the Universal Declaration of Human Rights and Article 39 of the International Covenant on Civil and Political Rights.
xxiii. That Count 7 of the Amended Charge is further fatally deficient because it fails to allege any acts or words by Defendant/Applicant in furtherance of an act of terrorism as defined by the Terrorism Prevention Act of2011. Additionally, the allegedly wrongful words uttered by Defendant/Applicant constitute free speech protected by the Nigerian Constitution, Article 39, and by Article 19 of the Universal Declaration of Human Rights and Article 39 of the International Covenant on Civil and Political Rights.
xxiv. That there is no proof of evidence attached to the Amended Charge filed against the Defendant.
xxv. That the even the purported proof of evidence to be relied upon by the prosecution does not disclose any prima facie case against the Defendant.
xxvi. That from the list of Exhibits and witnesses attached to the 7-Count Amended Charge, there is nothing relating to or linking the Defendant to the 7-Count Amended Charge, particularly counts 4, 5, 6 and 7 of the Charge.
xxvii. That no final pronouncement has been made on the purported proscription of the Indigenous People of Biafra, as the said purported proscription, is a subject matter of Appeal in Appeal No: CA/A/214/2018, pending before the Abuja Division of the Court of Appeal.
xxviii. That by virtue of Section 36(12) of the 1999 Constitution as amended, the Defendant/Applicant cannot be arraigned or tried for an offence which its validity or otherwise is the subject matter of an appeal.
xxix. That it will be most unjust, painful, wicked and unfair for the Applicant to undergo the rigors of a full trial, when the charge as constituted, does not disclose a prima facie case against him.
xxx. That there is no ground for this Honorable Court to proceed with the trial against the Applicant, in the circumstance of this case.
xxxi. That the Court has the powers and a duty to stop a prosecution which on the facts creates abuse and injustice.