Case Involve IMN Members was sitting on today in Kaduna
PROCEEDINGS OF THE 26TH DAY OF JULY 2016 IN THE CASE INVOLVING 81 MEMBERS OF THE ISLAMIC MOVEMENT IN NIGERIA CHARGE NO KDH/KAD/37C/2016
STATE VS MOHAMMED AUWAL YAKUBU AND 80 ORS DATE: 26/7/2016
JUDGE: JUSTICE DAVID WYOMS COURT: COURT NO 6, KADUNA
Dari Bayero Esq appears with A Isiaka and MD Joseph for the prosecution
Festus Okoye Esq appears with Maxwell Kyon, Haruna Magashi and Ummi Shetu Shehu for the accused persons:
Hon. Justice David Wyoms of the Kaduna State High Court (No. 6) will on the 26th day of September 2016 deliver rulings on various applications filed by the Prosecution and the Defense in one of the cases involving 81 members of the Islamic Movement in Nigeria. The members of the Islamic Movement in Nigeria are standing trial for Culpable Homicide, Unlawful Assembly, Disturbance of Public Peace and Wrongful Restrain punishable under sections 97, 221, 102, 106 and 256 of the Penal Code Law, Laws of Kaduna State, 1999.
ON THE MOTION FOR ARMY OFFICERS TO TESTIFY IN PRIVATE
Arguing his Motion, Dari Bayero, the Director of Public Prosecution, Kaduna State informed the Court that they filed a Motion on the 26th day of July 2016 seeking the order of Court permitting their witnesses No 1-9 to give their testimony in private(The witnesses are Colonel A.K Ibrahim, Commander I Division Internal Security; Colonel Sani K. Usman, Army Public Relations Officer; Colonel Mohammed Fago, Officer with the Records Office; Colonel Y. Ali; Lt. Colonel P. Kulawe Officer in charge of Operation Yaki; Nasiru Wowo, Soldier; Jiya Mahmud Liman, Soldier; Kanafa Suleiman, Soldier; and ASP Tanimu Jeremia a Ballistician). He supported the Application with 9 paragraphs affidavit. He informed the Court that the witnesses are principal officers in charge of their units and formations in the Nigerian Army.
He stated that because of the role they played in the events leading to the charge, they received various threats to their lives and the threats were received online. He urged the court to protect the witnesses.
Responding Maxwell Kyon Esq holding the brief of Festus Okoye Esq informed the Court that the defense filed a 6 paragraphs counter affidavit in opposition to the Motion and relied on all the paragraphs of the affidavit. He stated that the issue before the court does not bother on the personal liberty of the witnesses as they erroneously stated in their Motion paper and that since the Motion was brought under section 35 of the Constitution, the implication is that the very foundation on which the application rests is faulty.
He called in aid section 36 of the Constitution of the Federal Republic of Nigeria which states that any person charged with the commission of a criminal offence ought to be given a fair hearing. He stated that "One of the fundamental ingredients of fair hearing is that such an individual must be tried in the open. The fundamental question to be asked in the circumstances of this case is: whether the facts as put forward by the applicants have placed before my lord's sufficient material as a basis for the granting of the Application. We don't know who the Muslim Brothers are as the prosecution stated that they are the ones threatening them. Our clients are members of the Islamic Movement in Nigeria. The persons threatening them have no business with the proceedings before the Court. Paragraph 6(B) of their affidavit is that they know the leadership of the Movement that is threatening them. The leadership of the Islamic Movement in Nigeria is either in detention or were killed during the events of the 12th to 14th December 2015.
We have stated clearly that they killed the leadership of the Islamic Movement in Nigeria and the rest are in detention. They have not denied these facts. On the basis of that alone without more we urge my Lord to find that the application is lacking in merit and to throw it out. We further state that if the threats were online, the prosecution should have printed same and exhibited it. Since the applicants know those threatening them, they should have arrested them and brought them to justice. We further state that the prosecution never controverted the fact as deposed in the affidavit of the defense that nobody belonging to the Islamic Movement in Nigeria threatened them".
"In paragraph 6(f) of our counter affidavit, we averred that these same officers testified before the Judicial Commission of Inquiry set up by the Kaduna State and it is coming to court that is now their problem. In considering the provisions of section 36 of the Constitution and the fundamental nature that trials should not be done in secrecy no less a court than the Supreme Court in the case of Misimi Alimi &Ors and Asani Kosebini &Ors pointed out that it is fundamental at the end of the day that Justice is not only done but bed seen to be done.
We urge must Lord to hold that the 1st leg of the application must fail.
ON THE APPLICATION TO CONSOLIDATE CHARGE NO 37C AND 39C
On the application to consolidate charge no 37c and 39c before the same court, Dari Bayero told the court that they contain the same offences, the same witnesses, the same counsel and the same judge. He stated that the charges were separated for ease and convenience. Since some of the accused persons involving mainly women and children have been dropped from the charges, the inconvenience no longer exists. We urge my Lord to consolidate the two cases.
In opposing the application Maxwell Kyon informed the Court that it is hinged on two fundamental issues. He stated that every court derives its jurisdiction to do an act from a written statute. "This honourable court derives its powers from section 6 of the Constitution of the Federal Republic of Nigeria, 1999 and from the CPC in the management of criminal matters. He stated that the CPC does not give the court the power to consolidate criminal matters. He stated that inherent jurisdiction cannot be extended. There is no statute that gives the Court the power to consolidate the matter. We urge my Lord to find that this present application is lacking in merit and we urge my Lord to dismiss it.
ON MOTION TO MAKE AVAILABLE THE EXTRA JUDICIAL STATEMENT OF ACCUSED PERSONS.
Maxwell Kyon Esq informed the court that the defence filed a Motion on Notice dated the 21st day of July 2016. The Motion prays this honorable Court to direct the prosecution to make available to the defence photocopies of the extra judicial statements made by the accused persons and all documents that the prosecution intends to rely on in relation to the matter. He said that the application is supported by a 6 paragraph affidavit. He cited the Supreme Court authority of Okoye v. COP (2015) All FWLR (part 799) to buttress his contention and urged the court to grant the application.
Responding Dari Bayero objected to the granting of the application and insisted that the Motion will lead to the inspection of the case diary contrary to section 122 of the CPC. He urged the court to refuse the application.