The accused persons charged along with Kanu were the National Coordinator of IPOB, Mr. Chidiebere Onwudiwe; an IPOB member, Benjamin Madubugwu; and a former Field Maintenance Engineer on secondment to the MTN, David Nwawuisi.
Three of the defendants Kanu, Onwudiwe and Nwawuisi, had filed separate notices of preliminary objection challenging the validity of various counts in which their names were jointly or separately mentioned as accused persons.
Ruling on the preliminary objection on Wednesday, Justice Binta Nyako partly agreed with the applications by striking out six out of the 11 counts.
The judge said the struck-out charges did not call for trial due to the failure of some of them to disclose vital elements of the alleged offences.
She ruled that the proof of evidence also failed to disclose any prima facie case against the defendants with regard to some of the other counts.
The accused persons were on November 8, 2016 re-arraigned before Justice Binta Nyako on amended 11 counts, comprising terrorism, treasonable felony, managing an unlawful society, publication of defamatory matter, illegal possession of firearms and improper importation of goods.
But ruling on the applications by Kanu and two other accused persons on Wednesday, Nyako said some of the counts “cannot stand.”
She struck out charges contained in counts 3, 5, 7, 9, 10 and 11 which related to the management of unlawful organisation, intention to manufacture Improvised Explosive Devices planned to be used against some Nigerian security agents and alleged improper importation of a radio transmitter.
The judge ruled that the allegation in Count 3 relating to the “managing of unlawful society punishable under section 63 of the Criminal Code Act” could not be substantiated by the proof of evidence.
The judge ruled that the proof of evidence failed to show that IPOB was indeed an unlawful organisation.
She said the prosecution failed to show that the organisation had been proscribed or that it was not registered either in Nigeria or London in the United Kingdom.
She also said the alleged, “improper importation of goods contrary to section 47(1) (a) (i) of the Customs and Excise Management Act” levelled against Kanu in Count 5 did not disclose the elements of the alleged offence bordering on the importation of a Radio Transmitter known as TRAM 50L.
The judge also ruled that the allegation in Count 7 accusing Madubugwu of “managing an unlawful society punishable under Section 63 of the Criminal Code Act” by accepting and keeping a container housing the radio transmitter which he allegedly knew was to be used for Radio Biafra, also did not disclose any element of the alleged crime.
According to the judge, Count 9, which accused Onwudiwe and Nwawuisi of “conspiracy to commit treasonable felony contrary to Section 516 of the Criminal Code Act” also does not disclose the elements of the alleged crime.
Justice Nyako held that the count failed to disclose which of the acts of installation of the transmitter on the MTN mast site at Ogui Road, near St. Michael Church, Enugu State, and the agreement on the payment of N150,000 was the act that constituted the offence of conspiracy to commit treasonable felony.
“The charge has not disclosed what the offence is. This does not call for any trial,” the judge ruled.
She also struck out Count 10, which accused Nwawuisi, then a Field Maintenance Engineer with the NTN in Enugu State, of “management of unlawful society punishable under section 63 of the Criminal Code Act.”
The prosecution had accused Nwawuisi of the offence for allegedly permitting the installation of Radio Biafra transmitter on the MTN mast for the purpose of propagating the objective of IPOB after being paid the sum of N150,000 by Onwudiwe.
The judge said the count could not stand because the proof that the IPOB was an unlawful society was not provided.
The judge also struck out Count 11, which accused Onwudiwe of “knowingly committing an act preparatory to an act of terrorism” by allegedly “carrying out research for the purpose of identifying and gathering of improvised explosive device-making materials to be used against the Nigerian security operatives carrying out their lawful duties.”
The prosecution alleged in the count that Onwudiwe had by the act, committed an offence of “terrorism contrary to section 2(1)(a) of Terrorism (Prevention) Amendment Act 2011 as amended in 2013.”
But the judge agreed with the defence that since the offence only had to do with an intention to commit a particular act, it was the magistrate court that had the jurisdiction to entertain such a charge.
The judge however sustained Counts 1, 2, 4, 6 and 8.
Count 1 has to do with “conspiracy to commit treasonble felony contrary to section 516 of the Criminal Code act” by conspiring among themselves to broadcast on Radio Biafra “for states in the South-East and South-South geopolitical zones and other communities in Kogi and Benue states to secede from the Federal Republic of Nigeria with a view to constituting same into Republic of Biafra.”
Count 2 has to do with an allegation of treasonable felony which Kanu allegedly committed by broadcasting in London between 2014 and 2015 for the secession of Republic of Biafra from Nigeria.
The court also sustained Count 4, which accused Kanu of “publication of defamatory matter contrary to section 375 of the Criminal Code Act” by referring to the then Maj.Gen. Muhammadu Buhari (retd.) and now President of the Federal Republic of Nigeria as “a pedophile, a terrorist, an idiot and an embodiment of evil” in a broadcast on Radio Biafra on April 28, 2015.
The judge also sustained Count 6 which accused Kanu of “improper importation of goods contrary to section 47(2)(a) of the Customs and Excise Management Act” by allegedly concealing a radio transmitter in a container of used household items and declaring the transmitter as part of the used household items.
Count 8, which accused Madubugwu of being in possession of one Emerald Magnum Pump Action Gun with serial number TS 870 – 113 – 0046 and one Delta Magnum Pump Action Gun with serial number 501 as well as 41 cartridges/ammunition without lawful authority or licence, was also sustained.
Madubugwu was reportedly caught with the firearms in his house in Ubulusuzor in Ihiala Local Government Area of Anambra State in October 2015.
With the agreement of the prosecuting counsel, Mr. Shuaibu Labaran, Kanu’s lawyer, Mr. Ifeanyi Ejiofor, and other defence lawyers, the five surviving charges were read to the accused persons after the ruling on Wednesday.
Hmmmm...I just hope this is not an attempt to free this guy???
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