A Federal High Court in Abuja has ordered the detained self acclaimed leader of the proscribed separatist group, Indigenous People of Biafra (IPOB) Nnamdi Kanu to enter a defence in his ongoing terrorism trial or be deemed to have waived his right to do so.
Justice James Omotosho issued the order on Tuesday after Kanu failed, for the fourth day, to enter his defence after the prosecution closed its case and the court overruled his no-case submission.
The judge said should Kanu fail to open his defence on November 5, he would be deemed to have waived his right to do so.
The court had, on October 27 adjourned till November 4 for Kanu to either file his final written address or open his defence.
At the resumption of proceedings on Tuesday, Justice Omotosho gave a brief history of the case so far and said the business of the day was for Kanu to either open his defence or adopt his final written address.
Kanu, who is conducting his case by himself, said he has not filled any final written address as ordered by the court, but filed a motion and a supporting affidavit.
Kanu said he would not enter any defence because he was convinced that there is no valid charge, known to any extant law in the country, that is pending against him.
He said: “I believe there are a few misconceptions here. There is no valid charge against me,” and proceeded to read from a judgment of the Supreme Court, which he claimed said Section 47 of the Criminal Code Act (CCA) does not exist.
Kanu also argued that the Terrorist Prevention Act 2013 under which he is being tried, has been repealed and accused the court of failing to take judicial notice of his claim that the law has been repealed.
He said: “The fact that this court has refused to take judicial notice of a repealed law vitiates this trial.
“My lord , you failed to take judicial notice of the fact that the law under which I am being tried is repealed.
“Why are you asking me to enter defence when there is no law under which I am being tried.
“I cannot no go back to custody unless this court tells me under what law that I have been charged,” he said.
He threatened not to return to detention and demanded that he should be set free and allowed to go home immediately because, according to him, there is no valid charge in respect of which he should be further subjected to trial.
Kanu cited Section 36 (12) of the Constitution, in support of his argument that he could not be subjected to trial under a law that is not in existence.
Justice Omotosho later asked him to read out the section of the Constitution to the hearing of the court, which he did, following which the judge took time to explain the provision to the defendant
The judge told him that the provision of Section 36(12) of the Constitution was not applicable at the current stage of the case.
Justice Omotosho said: “We have not got to that stage. It is when you have entered your defence or rest your case on the prosecution’s case that, at the judgment stage, it would be determined whether or not you can be convicted.
The judge added that it was not yet the stage where the court could determine whether or not the offence for which the defendant is being tried is known to law, adding that the issue of conviction, which Section 36 (12) relates to, could only be determined at the conclusion of the case.
Justice Omotosho said he had earlier made pronouncement on the consequence of a repealed law while ruling on the no-case submission earlier made by Kanu.
The judge noted that is the same Supreme Court, whose judgment Kanu quoted from to support his claim that his trial was unlawful, that sent the case back to the Federal High Court for the defendant to be tried on the remaining seven counts.
He added that if the Supreme Court did not see the need for the defendant to be subjected to trial, it would not have sent the case back for trial.
Kanu, who remained adamant on his position that he would not enter his defence, said: “this is constructive denial of fair hearing. You cannot send me back to detention without telling me under which law I am being tried.”
He later informed the court that he filed a motion and an affidavit, which he said raised threshold issues about the court’s jurisdiction to continue to hear the case.
Responding, prosecuting lawyer, Adegboyega Awomolo (SAN) faulted the competence of the fresh court documents filed by Kanu, arguing that they were not properly filed.
Awomolo said although he considered the documents incompetent, he has filed a response to it.
He urged the court to desist from further indulging the defendant, who he claimed, was only interested in wasting the court’s time.
Awomolo prayed the court to deem the documents filed by Kanu as his final written address, direct parties to adopt their final addresses and adjourn for judgment.
Before ruling, Justice turned to Kanu, who sat in the dock, and said: “Just like I did the other time, I appeal to you, in the name of Almighty God to get a legal expert that can put you through.
“When I said lawyer, it is not just a lawyer, but one that is conversant with criminal proceedings. In the name of Almighty God, you need to get a lawyer to put you through.
“The law has given you the opportunity to put in your defence. If you say you are not calling witnesses, the court cannot force you.”
“My dear brother, I appeal to you in the name of Almighty God to get a lawyer, who is an expert in criminal law to put you through,”
Ruling, Justice Omotosho said the documents filed by Kanu were in order and would be considered at the time of judgment.
He said all preliminary objections will be taken at the final written address stage.
The judge added that, having taken judicial notice that the defendant is not a lawyer, he should be given opportunity to consult a lawyer and get necessary support.
Justice Omotosho then adjourn till November 5 for the defendant to either enter his defence or be deemed to have waived his right to do so
