26 February 2003

Nigeria: Ibru: Mohammed Abacha Heads for Appeal Court

Abuja — Mohammed, son of the late Head of State, General Sani Abacha is once again headed for the Appeal Court to contest a ruling delivered by an Abuja Federal High Court on Monday.

The ruling dismissed his application seeking to enforce his fundamental human rights by restraining the Federal Government from re-arresting him for the attempted murder of Chief Alex Ibru, publisher of the Guardian Newspapers and Senator Abraham Adesanya, a leader of the pan-Yoruba socio-cultural organisation, Afenifere.

The presiding judge at the lower court, Justice Egbo Egbo had contended that the Police could re-arrest Mohammed over the attempted murder charges saying, he (Mohammed) is not a sacred cow that could not be re-arrested and investigated by the Police for an offence.

The notice of appeal filed by Yunus Ustaz Usman (SAN) reads: "the learned trial judge erred in law when he held that the respondents are at liberty to arrest, detain and or prosecute the appellant based on the statement of Abdul Mohammed aka Katako for the attempted murder of Chief Abraham Adesanya and Alex Ibru despite case no. SC/290/2001."

Ustaz submitted that Katako's evidence, which is supposed to form the basis of Mohammed's arrest, detention and prosecution was discredited in the ruling of the Supreme Court. He contended that "It (Katako's evidence) can no longer constitute valid and legal evidence to be used against Mohammed."

Mohammed by this appeal is seeking to set aside the order dismissing his application.

Other grounds for the appeal are that the trial Judge erred by saying that granting Mohammed's prayers would amount to interfering with the duty of the Police and give him (Mohammed) 'blanket immunity' from investigation or prosecution by the Federal Government and its agencies.

Ground three of the appeal reads: "the trial judge misdirected himself when he held that the statement of the senior Police officer, DSP Dickson acting for the respondents (that the Federal Government would use the evidence of Katako against Mohammed on his alleged involvement in the attempted murder charge) is speculative. And that the words communicated by Dickson did not constitute threats to his fundamental human rights."

Ustaz also averred that the judge erred when he held that the Supreme Court judgement in case no. SC/290/2001 is limited to the murder of Alhaja Kudirat Abiola in charge No. ID/43c/99 and that the judge introduced extraneous matters into the consideration of Mohammed's application.

By the ruling of the Federal High Court, Mohammed stands the risk of being re-arrested since the Court dismissed his application Delivering the ruling, Justice Egbo Egbo had averred that mere speculation was not sufficient grounds to warrant such an order as sought in Mohammed's application

Mohammed had sought for a declaration, that the government cannot arrest and detain him on alleged offences of attempted murder based on the statement of one Mohammed Abdul alias Katako in view of the Supreme Court's judgement in suit No. SC/290/01.

According to him the ruling of the apex court had exonerated him by ruling that the statement of Katako did not link him to the murder of late Kudirat Abiola, wife of Late Chief M.K.O Abiola, nor could the information in that statement be used against him in any other matter.

Based on this, he also sought injunctive orders restraining the respondents from arresting, detaining or prosecuting him and handing him over to any State Government for prosecution based on Katako's statement.

Mohammed's lawyer had submitted his clients application in December 2002 in which he had stated "it will amount to a violation of the applicant's fundamental right, double jeopardy and abuse of legal process to allow the respondents to try Mohammed for the attempted murder of Ibru and Adesanya or of any crime whatsoever based upon the discredited statements. To allow him to be tried in any court of law upon such statements is an abuse of the process of court."

Egbo while citing section 46 of the 1999 constitution said, " There must be sufficient overt act that the respondent would violate the Fundamental Human Right of the applicant. He must be sure then that the act is aimed towards contravention of the fundamental human right. A mere speculation was not sufficient to warrant such an order as sought in the application. The statement by Dickson (the police officer) that made the appeal come to court is not enough to violate the fundamental human rights of the applicant. Mere threat is not enough, it should be backed up by an overt act of the respondents (government)."

Reacting to the discharge of Muhammed by the Supreme Court in the Kudirat's case, the learned judge said, "The decision of the Supreme Court did not grant immunity to the applicant in other cases, the police have the power to investigate the applicant and form their own independent opinion as guaranteed under section 4 of the Police Act and section 194 of the 1999 Constitution."

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