Justice Binta Nyako, in a ruling yesterday, rejected an application by IPOB, seeking to compel the Chief of Army Staff (COAS) to produce Kanu.
The ruling was on the application by IPOB seeking “an order of Habeas Corpus ad subjiciendum, commanding the respondent (Buratai), to produce the applicant in court.”
IPOB had, in a supporting affidavit, claimed not have not seen or heard from Konu since September 14, 2017, when men of the 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, in a counter-affidavit, denied knowledge of Kanu’s whereabouts. He said 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.
He added that the Nigerian Army did not, at any time, arrest or take Kanu into custody within the period the military operation lasted. He also denied the allegation that soldiers invaded the IPOB leader’s house in Afara-Ukwu Ibeku, Umuahia, Abia State.
In her ruling yesterday, Justice Nyako 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.
The judge said: ”The doctrine of last seen”, which the applicant relied upon, even though applicable in murder cases, has no statutory backing.
Justice Nyado, who observed that Kanu was listed as the first applicant, said she was surprised that someone said to be missing, was the one seeking reliefs from the court.
She said the supporting affidavit filed by Kanu’s lawyer, Infeanyi 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 what next steps would be taken.
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,” Justice Nyako said.
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.