The Indigenous People of Biafra (IPOB) has told the Abuja division of the Court of Appeal that the memo written by the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, to President Muhammadu Buhari, which was relied upon by the Federal High Court to proscribe and declare it a terrorist organization was signed by the late Chief of Staff to the President, Alhaji Abba Kyari.
IPOB said the signing of the memo by Abba Kyari contravened the clear provisions of the Terrorist Prevention Act, which provided that the approval shall be signed by the President of the Federal Republic of Nigeria.
This is contained in the amended brief of argument filed in the appeal challenging the proscription and classification of the group as a terrorist organization.
IPOB further accused the Federal Government of discrimination against it by proscribing it activities and declaring it a terrorist group.
“The Hon. trial court not validate the unconstitutional behaviour of the Respondent discriminatory act by applying for the declaration and proscription of Appellant and the President purportedly approving the same whereas their Fulani Herdsmen (the 4th Most Deadly Terrorist Group in the world) who move freely with AK.47 murdering, killing indigenous people all over Nigeria and grapping their lands were never condemned and or proscribed and whether there was even a valid approval by the President.
Specifically, the appeal marked CA/A/214/2018, and filed by the lead counsel to IPOB, Mr. Chukwuma-Machukwu Ume, SAN, is querying the decision of the Abuja division of the Federal High Court, in suit No: FHC/ABJ/CS/871/2017, proscribing and declaring IPOB as a terrorist group.
The Federal Government, through the Attorney General of the Federation, had on September 20, 2017, approached the Federal High Court via an exparte application brought pursuant to Section 2(1) of the Terrorism (prevention) Act 2013, to declare and proscribe IPOB, as a terrorist organization among other reliefs.
The former Imo State Attorney General said upon information gotten on the newspapers, his client on September 22, 2017 applied for the setting aside of the order of the trial court made on the 20th September 20, 2017.
The group submitted however that the trial court had while dismissing the Appellant’s application, erroneously held:
the word “the judge in chambers may on an application made by the Attorney General…” presupposes that the application is to be made Exparte. …. the important condition is that the president will have to give his approval and this had been complied and the presidential approval was on the memo the Honourable made to the president dated 15th September, 2017.”
Dissatisfied with the entire ruling of the trial court, IPOB appealed to the Court of Appeal urging it to set aside the decision as well as the consequencial orders made b the court.
But in its amended grounds of appeal, IPOB said ” the purported presidential approval as contained was simply a memo written by the Hon Attorney General of the Federal to the President dated 15th September, 2017(Exhs. AGF 11a & 11b)(see pages 57 – 61 of the Records of Appeal) to president Muhammadu Buhari and was curiously signed by Abba Kyari the then Chief of Staff to the president contrary to the unambiguous provisions of the Terrorism Act which specifically provided that the approval shall be signed by the president of the Federal Republic of Nigeria.
“Lords, a cursory look at the Memo of the Hon. Attorney General of the Federation dated 15thday of September 2017, addressed to President Muhammadu Buhari and the said presidential approval (EXHIBIT AGF IIA & IIB) (pages 57 – 61 of the Records of Appeal)which the trial judge relied on as constituting the mandatory President’s approval show that it was a mere Memo from the Attorney General of the Federation to the President requesting for the said President’s approval as prescribed under Section 2 (1)(C) of the Terrorism Prevention (Amendment) Act, 2013, and not the mandatory President’s approval envisaged under the Act.
” We therefore submit that having not been signed by the President of the Federal Republic of Nigeria, there was no evidence of the presidential approval before the trial court as required under Section 2 (1)(c) of the Terrorism Prevention (Amendment) Act, 2013. More so, under Section 40 of the Terrorism Prevention Act, 2011, which deals with the interpretation of words or phrases, the word “President” as used in the Act, refers and only means “the President”
It is equally our further submission that the Constitution of the Federal Republic of Nigeria 1999 under Section 5 neither mentions nor contemplates any form of delegation to the Chief of Staff to the President as an officer to whom such crucial executive function of the President can be delegated to.
In fact, the decision to approve the proscription of a group or organization as a terrorist body is one of discretion to be personally exercised by the president of the Federal Republic of Nigeria, which was regrettably delegated to the chief of staff contrary to the well established Rule against sub-delegation which states that a delegate cannot sub-delegate his functions and powers hence the latin maxim ‘delegatus non potest delegare’ means that a delegate cannot delegate his functions unless he is otherwise authorised or permitted to do so. This is especially where he is required to personally perform the delegated function or exercise the power concerned.
“That the Office of Chief of Staff to the President is not one of the offices mentioned in S. 5 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to which the President can delegate his powers and functions. The principal cannon of interpretation remains that the express mentioned of a thing is to the exclusion of all others.