The Abuja Division of the Federal High Court on Thursday rejected the evidence sought to be tendered by the federal government in the ongoing trial of Nnamdi Kanu, leader of the proscribed Indigenous People of Biafra (IPOB).

Justice James Omotosho, in a ruling, agreed with the argument of the defence counsel, Paul Erokoro (SAN), that the Supreme Court had ruled that in extracting an extrajudicial statement from a suspect, the presence of his lawyer is mandatory.

Mr Omotosho held that though a provision of the Administration of Criminal Justice Act (ACJA), 2015, used the word “may” to mean that “the presence of a lawyer to a suspect is not a must while making a statement”, he could not close his eyes to the apex court’s decision.

The judge stood down the matter to deliver a ruling on the admissibility of the evidence sought to be tendered by the federal government.

The development occurred after FG’s counsel, Suraj Saida (SAN), and Mr Kanu’s lawyer, Paul Erokoro (SAN), adopted their written addresses and argued their case for and against the propriety of the evidence.

Ruling after the trial-within-trial, Mr Omotosho held that the issue is whether, with regard to the evidence placed before the court, the statements of Mr Kanu were admissible in law.

He stated that the burden of proof in a trial-within-trial lies with the prosecution to prove its case.

The judge said, in the mind of the court, the defendant did not establish the allegations of involuntariness in any way.

He said the video recordings showed that Mr Kanu was relaxed when he was interviewed by the State Security Services (SSS) operatives. He said the video and the statements showed they were the same.

However, the judge said the court must not close its eyes to the fact that Mr Kanu repeatedly said in the video that his statements were taken without his lawyers.

He held that relevant laws state that under Section 17(2) of ACJA, the statements of a defendant may be taken in the presence of a legal practitioner of his choice or, where he has no counsel, an official of the Legal Aid Council shall be present.

Mr Omotosho, however, added that the Supreme Court had ruled several times that the presence of a lawyer for a defendant when he is making his confessional statements is “mandatory”, and the security agencies must comply with it.

He said the charge against Mr Kanu was a grievous one, requiring the presence of the suspect’s lawyer during the recording of the statements.

“The statements are inadmissible in light of this omission by the prosecution,” Mr Omotosho said.

He held that the 2015 statements obtained from Mr Kanu are inadmissible in law due to the absence of his lawyers.

The judge subsequently expunged the video evidence and statements obtained from Mr Kanu on these grounds.

“The objection of the defendant’s counsel is upheld. The statements of October 23, 2015, and November 2015, earlier admitted in evidence, are rejected,” the judge said.

Mr Omotosho proceeded to mark the statements rejected and also expunge from the court’s record the video recordings of the interview and statement writing sessions that Mr Kanu had with the SSS officials in October 2015.

The video recordings were earlier admitted in evidence by the court during Wednesday’s proceedings and marked as Exhibits PWQ and PWR.

Mr Omotosho, on Wednesday, ordered a trial-within-trial following Mr Kanu’s rejection of the extrajudicial statements sought to be tendered by the prosecution.

The IPOB leader had alleged that he made the statements under duress.

Mr Kanu alleged that SSS officials, who interrogated him, denied him access to his lawyer, threatened not to allow him on bail and denied him the one hour granted to him daily to receive fresh air, given his health challenge.

He said he was threatened by an SSS investigator, whom he described as Brown Ukuaba, an assistant director of investigation.

Mr Kanu also alleged that his interrogators asked him to say things about former President Jonathan and former Governor Rochas Okorocha of Imo. He said he was kept in an underground cell, and the video recordings played in court were edited.

The FG’s witness, an SSS operative, however, insisted that Mr Kanu was never subjected to coercion and that all the complaints he raised were addressed.

He denied that Mr Kanu was subjected to any form of duress or coercion and faulted his lawyer’s claim that he was kept in solitary confinement in an underground cell and that he suffered from any ill-treatment.

The SSS operative said Mr Kanu was given preferential treatment and served bottled water during the interview sessions.

He also denied that anyone asked Mr Kanu to say things about Messrs Jonathan and Okorocha, adding that the IPOB leader “spoke voluntarily and truthfully in the interviews.”

Mr Omotosho then ordered the conduct of a trial-within-trial to ascertain the voluntariness or otherwise of Mr Kanu’s statements.

(NAN)