IPOB: Alleged Defect In Proscription Order Is Curable By Jiti Ogunye

On 16th September, 2017, we issued a FB Post on the legality and constitutionality of the declaration of IPOB as a terrorist organization by the Nigerian Military. Our contention was that the action of the military was illegal and unconstitutional . We ended the Post with the following admonition: ” Moving forward , the FGN needs a more coherent legal strategy in dealing with IPOB “.

Of course, that post generated a lot of arguments with many of our friends not only insisting that the declaration made by the military was legal , but also opining that the expediency of taking out IPOB was, and should be paramount over lethargic legalism . Adherence to the substance of law, they felt, should dwarf the slavish worship of legal technicalities .

Instructively, the military has since backtracked on declaring IPOB as a terrorist organization.

On Wednesday, however, the FGN obtained a proscription order against IPOB at the Federal High Court of FCT Abuja, presided over by the Honourable Acting Chief Judge Abdul Kafarati.

A legal issue has, however, arisen regarding the competence of the proscription application ex parte in Chambers, the validity of the proscription order, and the question of whether the Court had the requisite jurisdiction to grant the order. A perusal of the certified true copy of the proscription order shows clearly that the parties to the proscription application and the resultant court order are the Attorney General of the Federation and IPOB.

It is being contended that since IPOB, a non juristic or registered association or organisation, which lacks a legal personality , was the body the action was instituted against , and against whom the proscription order was obtained, both the action and the proscription orders are incompetent, null and void and of no effect.

This contention is anchored on the trite position of the law that an unregistered association or a body that is not established by , or mentioned and assigned duties in a statute cannot sue or be sued in its own name , but may only be sued through its registered trustees or unregistered representatives.

If this contention is accepted as valid , and there is no good reason why it should not be so accepted, given the decisions of the courts, the IPOB proscription order could be regarded as having a technical defect . The defect is , however, curable, in our view.

The Attorney General of the Federation could approach the Court again with a fresh application in which IPOB could be sued or charged in a representative capacity, to be headed : AGF v Nnamdi Kanu & Ors ( For themselves and on behalf and as Leaders and Representatives of the Unregistered Organisation, the Indegenous Peoples of Biafra – IPOB) . In the body of the application, the proscription order, specifically, will be sought against IPOB. Thus, both the application and the orders that may be predicated thereon will be in order. While taking this step, the AGF may also file an application to set aside the first proscription order for reason of the technical defect. This will avoid duplication.

The AGF may, also, as an option, approach the court with an application to correct the technical defect or error, contending that suing IPOB as he did, originally, was a ” misnomer” , which can be cured both in the original application and in the proscription order.

And any of these steps will be by motion ex parte, without giving a notice to IPOB. IPOB, will only “get notice” when the proscription order is published in the Gazette, and thus be in a legal position to challenge the proscription order, if it so wishes. Either of these steps is possible since the processes are not applications on notice. They are applications ex parte.

A close look at the proscription order shows that the AGF led the Solicitor General and other learned law officers in the Federal Ministry of Justice to obtain the order. Yet, the alleged slip occurred.

That was why we wrote the last time about the need for a coherent legal strategy.

Paying attention to details and demonstrating punctiliousness in the discharge of legal duties of the State is a virtue. Not a vice.

This pointed out “defect” is a ” storm in a tea cup” . In the circumstances, it may not be rewarding to persistently and obdurately object to the proscription order on the ground of its alleged legal invalidity. It may be more profitable for those who care to debate its equity and political prudence.

Just one consideration, for example. What image will Nigeria project to the world if, after the IPOB proscription, it were to embark on further prescriptions of “terrorist organizations” in the South- South , North and South West? To those who take international ” investment decisions ” , and who look at travel advisory before coming to Nigeria, will that be a picture of stability or instability? Two , three four ” terrorist organizations” in one country?

Quite frankly , I think this is the debate we should be having.

IPOB or any such organization fits into the statutory definition of a terrorist organisation, having regards to the provisions of Terrorism Prevention Act, 2011, as amended in 2013. Just like the elements of statutory rape are clear, regardless of whether there is actual rape, the elements of ” statutory terrorism ” are clear under Nigerian law, regardless of whether we believe an organisation is factually a terrorist organization or not.

Source: www.lawyard.ng