Many legal luminaries have differed on the ban by a court in Abuja over the activities of the Indigenous People of Biafra, which also classified the agitators as a terrorist organisation.
The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), had, on Wednesday, on behalf of the Federal Government, obtained an interim order proscribing IPOB and declaring the secessionist group as a terrorist organisation.
The order was granted by the acting Chief Judge of the Federal High Court, Justice Abdu Kafarati, in chambers.
The judge held, “That an order, declaring that the activities of the respondent (Indigenous People of Biafra) in any part of Nigeria, especially in the South-East and South-South regions of Nigeria, amount to acts of terrorism and illegality, is granted.”
Here are some of Nigeria’s legal authorities who have different opinions on the ban and what they think should have been done according to this report by Punch:
The immediate past Lagos State Solicitor-General, Mr. Lawal Pedro (SAN); a human rights advocacy group, Access to Justice; activist lawyer, Mr. Ebun-Olu Adegboruwa, and IPOB faulted the order of Justice Kafarati, saying it had no legal precedent.
But two professors of Law, who are also Senior Advocates of Nigeria, Yemi Akinseye-George and Fidelis Oditah; other SANs – Yusuf Ali and Tayo Oyetibo – and the Special Assistant to the President on Prosecution, Mr. Okoi Obono-Obla, argued that the order of the court was valid and backed by law and fact.
In a statement on Thursday, Pedro wondered whether IPOB was a juristic person that could be sued.
He also observed that though the order proscribing IPOB was granted pursuant to an ex parte application, the pronouncement of the court sounded rather declaratory and final.
Pedro, who described the issue of IPOB agitation as important, advised the AGF to assemble a competent team to handle the case in order not to jeopardise it.
Pedro stated, “I observe that many things are wrong with the order and can easily be challenged, so as to set it aside.
“In the first place, is IPOB a juristic person to be sued and for the court to exercise jurisdiction upon?
“Secondly, this looks like a final order or judgment granted on a motion ex parte. This cannot be right in law. A different procedure should have been used to achieve the desired result.
“Thirdly, the order or judgment is in breach of the fundamental right of the named respondent (assuming it is a juristic person) to fair hearing. It is, therefore, unconstitutional null and void.
“Lastly, the main relief is a declaratory order or judgment which should not be granted vide a motion either on notice or ex parte.
“It is my advice that the AGF should review its strategy on the subject and may consider a proper and better legal team to advise and handle this important and sensitive case.”
Pedro, however, said that the order, having been made by a competent court of law, had legal weight and remained binding until it was set aside.
Also, a human rights advocacy group, Access to Justice, in a statement by its Deputy Director, Dr. Adenike Aiyedun, shared Pedro’s views, arguing that the order was against the principle of fair hearing.
On its part, A2J also raised concern as to whether the constitutional principle of fair hearing was respected in the handling of the case.
The group said, “The court’s ruling is hard to rationalise and it will send many scratching their heads as well as fan the flames of an already volatile political situation.
“It is disturbing because the ruling – which is a determinative, and conclusive statement on the legality of the Indigenous People of Biafra, as far as this court goes – was arrived at ex parte, when the other side – IPOB – was not given an opportunity at all to be heard or to oppose the application. It is at odds with basic tenets of justice and fairness.
“The ruling of the Federal High Court does not stand up to respectable scrutiny and we fear that it would further damage public trust in the Nigerian judiciary.”
In a similar vein, activist lawyer, Mr. Ebun-Olu Adegboruwa, described the Federal Government’s application and the order made by the court as an abuse of court process.
Adegboruwa argued that the court order had no foundation in law because IPOB, not being a registered organisation, was not juristic and could not be sued.
He added, “Legally speaking, the suit filed, the order granted and indeed all the proceedings in this case, constitute a gross abuse of the process of the court as the court has no jurisdiction to entertain, let alone adjudicate upon the case.
“The suit was not initiated following due process of law, as stated by the Supreme Court in the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341. The suit filed and the orders granted have no foundation upon which they can stand and be maintained or enforced.
“The supposed defendant in the case is the Indigenous People of Biafra, which is not a registered entity in law. And even if it is registered, it can only be sued in the name of its incorporated trustees or indeed its accredited representatives. Furthermore, unlike other associations like the Nigerian Bar Association, IPOB is not recognised or mentioned or legitimised in any existing statute.
“For a suit to be competent, there must be proper parties before the court. In this case, the supposed defendant, IPOB, is a no-juristic person against which no action can be maintained in any court of law.”
Profs, Ali, Oyetibo, Buhari’s aide disagree
But a professor of Law, Yemi Akinseye-George (SAN), while admitting that an unregistered organisation was not juristic and could not be sued, recalled that a precedent had been set by the court in the case of Boko Haram, which was not registered, yet proscribed.
Akinseye-George stated, “You cannot sue an unregistered organisation. I’ve not seen the ruling but if the organisation is not registered, but Nnamdi Kanu was joined as one of the defendants, the application is valid.
“Again, we can take precedent from the Boko Haram case; a similar order was obtained against Boko Haram to declare it a terrorist organisation and the order took effect; so, there is precedent.
“In the first place, terrorist organisations cannot be registered by law, so, you cannot say because they are not registered, they cannot be proscribed.”
Another professor of Law, Fidelis Oditah (SAN), affirmed that though he did not know the status of IPOB, only a juristic organisation could be sued.
He explained that if IPOB was not a juristic person, the Federal Government would still have been able to proscribe it without going to court but by the President, obtaining power from the legislature to declare the group illegal.
Oditah added, “I don’t know about the status of IPOB, whether it is a juristic or non-juristic person. Assuming it is a non-juristic person, then, there is no person capable of being the subject of legal rights or obligations. That is the way that a lawyer will look at it. But that is not a complete answer because there are many amorphous organisations that can be clamped down upon notwithstanding that they have no legal existence.
“The reason that this issue has arisen is because the Attorney General went to court to obtain an order and one assumes that an order can only be directed at a legal person. But if it had been the legislature giving the President power to proscribe by a declaration, it might be possible for the government to proscribe an organisation such as IPOB even if it’s not a legal person.”
Aligning with the opinions of the dons, a SAN, Mallam Yusuf Ali, argued that IPOB could be proscribed in Nigeria even when the body was not registered in Nigeria.
He said a group existing “as a fact”, with its activities affecting the lives of other persons, could be proscribed even when such body was not registered.
He said, “IPOB is not registered but it is mobilising Nigerians against other Nigerians.
“Should we just fold our arms? Shouldn’t the doctrine of necessity come to the aid of the law to proscribe it?”
Ali recalled that although the Ibrahim Zakzaky-led Islamic Movement of Nigeria (also known as Shi’ites) was not a registered body in Nigeria, the group was proscribed by the Kaduna State Government after its members clashed with the Army in December 2015.
He said, “In law, it is not all the time that a non-registered body cannot be subjected to a legal action. The question is does the body have the ability to affect the lives of other people?
“There has been an old case in which the issue was determined. The court said in the case that although the body was not registered, its activities were affecting the lives of other people.
“It is a notorious fact that IPOB is not a body that could have been registered because it was a body set up to operate outside the law.
“So, IPOB exists as a fact even if you are closing your eyes to it because the law says it doesn’t exist.”
Another senior advocate, Mr. Tayo Oyetibo, stated that the proscription of IPOB was legal because of its activities, despite the fact that the group was not registered under the law.
Oyetibo said, “The assertion that the group is not registered cannot be a correct reason for attacking the proscription. This is because if a body, even in the guise of a masquerade, goes out to infringe on peoples’ rights, you can drag the masquerader in the form it is and deal with it.
“Can you allege some facts against a person, and on the basis of those allegations, come to a conclusion without hearing the parties concerned as to whether those factors are correct? It is not the registration but the activities that make an organisation seen to be carrying out illegal activities. You can hide under non-registration and carry out nefarious activities; that does not stop the law from dealing with you.”
But the Special Assistant to the President on Prosecutions, Mr. Okoi Obono-Obla, on Thursday, defended the order made by the Federal High Court in Abuja proscribing IPOB.
Obono-Obla said in a statement that IPOB was an unlawful society within the contemplation of Section 62 (2) of the Criminal Code, adding that the proscription order did not infringe on the members’ right to freedom of association.
According to the presidential aide, the Federal Government’s application requesting the proscription order was filed under the Terrorism (Prevention) Act, and not based on the principles applicable to civil proceedings.
The presidential aide stated, “It beats me as to how the argument put forward by Ebun-Olu Adegboruwa, an experienced and tested legal practitioner of many years standing, could use the principles of law designed and applicable to civil proceedings to argue that the order of proscription of IPOB is faulty because the body is not registered in Nigeria and therefore cannot sue or be sued!
“It is beyond argument that the application for an order, proscribing IPOB, was brought pursuant to the Terrorism (Prevention) Act, which to all intents and purposes is a criminal legislation!
“It is well settled that the rules of procedure that regulate criminal proceedings in the Federal High Courts and the High Court of the Federal Capital Territory, Abuja, is the Administration of Criminal Justice Act,2015 (not the Federal High Court (Civil Procedure) Rules or the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004.”
He also said in another statement that IPOB remained constitutionally proscribed as the Terrorism (Prevention) Act 2013, under which the court order was issued, did not make registration of a group in Nigeria a precondition for proscribing such body.
“The purpose of this treatise is to correct the impression that the order is unconstitutional.
“The Terrorism (Prevention) Act does not stipulate that a body must be registered in Nigeria or elsewhere before it can be proscribed, within the contemplation of the provisions of Section 2 subsection 1 of the Act.
“It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper.”
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