May 6, 2008
S. Aliyu Esq.
Director of Public Prosecutions,
Federal Ministry of Justice,
Maitama District,
Abuja, F.C.T.
Dear Mr. Aliyu,
RE: CHARGE NO: FHC/ABJ/CR/178/2007
FEDERAL REPUBLIC OF NIGERIA V. HENRY OKAH
The above subject matter refers.
It would be recalled that the learned trial judge, Adah J. delivered two rulings on your application for secret trial of the Accused and the taking of his plea when he had not been served with the proof of evidence in the charge of treason, treasonable felony etc being prosecuted by your good self.
Dissatisfied with both rulings our client instructed us to challenge them on appeal. Accordingly, the Notice of Appeal prepared by us is ready for filing but our client is required to sign same pursuant to Order 16 Rule 4(1) of the Court of Appeal Rules (Practice Direction No. 2 of 2007).
As our client is held incommunicado in an undisclosed military custody (contrary to the Order of the Federal High Court that he be kept in the custody of the State Security Service) we are compelled to request you to forward the Notice of Appeal attached to this letter to him forthwith.
It will be appreciated if you can ensure that the Notice of Appeal is signed by our client and returned to us not later than Friday, 9th May, 2008 to enable us to file same without any delay.
Yours sincerely,
FEMI FALANA ESQ.
FORM 3
IN THE COURT OF APPEAL
HOLDEN AT ABUJA
CHARGE NO: FHC/ABJ/CR/178/2007
APPEAL NO:…………………………...
BETWEEN
HENRY IMOMOTIMI OKAH )… APPELLANT/APPLICANT
AND
FEDERAL REPUBLIC OF NIGERIA )… RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE that the Applicant being dissatisfied with the decision of the Federal High Court contained in the judgment of the Honourable Justice S. Adah delivered on the 2nd May, 2008 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
AND THE APPELLANT FURTHER STATES that the names and addresses of the persons directly affected by the Appeal and those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF
The whole decision.
3. GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law when he held that the order ex parte for the secret trial of the Appellant made by Binta Nyako J. on 12th March, 2008 was “an interim order even if not specified”.
PARTICULARS OF ERROR
i. The order ex parte was perpetual in nature and scope as it was made to last throughout the trial of the Appellant.
ii. The motion ex parte was not filed along with any motion on notice.
iii. The order ex parte was granted without any return date.
iv. The order ex parte was not predicated on a pending motion on notice.
GROUND TWO
The learned trial judge erred in law when he granted the application of the Respondent for the trial of the Appellant in camera.
PARTICULARS OF ERROR
i. The application was incompetent as it was not by a Minister of the Government of the Federation as stipulated by Section 36(4) of the Constitution.
ii. The affidavit evidence in support of the application for secret trial offends Sections 86 and 87 of the Evidence Act.
iii. There was no evidence that any Minister of Government of the Federation or Commissioner of the Government of a State satisfied the learned trial judge that it would not be in the public interest for the trial of the Appellant to be publicly disclosed.
iv. The order for the trial of the Appellant in camera was not made “in the public interest” pursuant to Section 36 of the Constitution.
GROUND THREE
The learned trial judge erred in law when he held that if the trial is covered by the press it might expose Nigeria’s military capabilities to the outside world.
PARTICULARS OF ERROR
i. There was no evidence to support the speculative finding of the learned trial judge that Nigeria’s military capabilities might be exposed to the outside world.
ii. The Appellant was charged with treason and not espionage.
GROUND FOUR
The learned trial judge erred in law when he held that the Appellant was not entitled to be served with the proof of evidence before pleading to the charge of treason, treasonable, felony, illegal possession of firearms, incitement of the military etc.
PARTICULARS OF ERROR
i. The taking of plea is part of the defence of the Appellant.
ii. By virtue of Section 36(5) of the Constitution the Appellant is entitled to be provided with all facilities for the preparation of his defence.
iii. The proof of evidence of part of the facilities envisaged by the Constitution.
iv. The prosecution has undertaken to make the proof of evidence available to the Applicant.
GROUND FIVE
The learned trial judge erred in law when he entered a plea of “Not Guilty” for the Appellant in the 55-count charge when only counts 1 and 2 were read to him by the Court Registrar.
PARTICULARS OF ERROR
i. Having regard to the facts and circumstances of the case and arraignment of the Appellant offends Section 215 of the Civil Procedure Act.
ii. The Appellant’s complaint that he was fettered by his dehumanizing detention conditions was ignored by the learned trial judge who proceeded suo motu to enter a plea of “Not Guilty” for him.
GROUND SIX
The learned trial judge erred in law when he held that the Press would be briefed when necessary after every Court proceeding.
PARTICULARS OF ERROR
i. Having ruled that the trial shall be conducted in camera the learned trial judge has no power to engage in press briefing in respect of the criminal proceedings.
ii. There is no provision for press briefing by a trial judge under Section 36(4) of the Constitution.
4. RELIEFS SOUGHT
1) AN ORDER setting aside the ruling of the lower Court delivered on May 2, 2008.
2) AN ORDER setting aside the plea of “Not Guilty” entered for the Appellant by the learned trial judge.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL AND ADDRESSES
The Appellant
C/o His Counsel
Falana & Falana's Chambers
Plot 20 T. Y. Danjuma Street,
Opposite Kebbi State Governor’s Lodge,
Asokoro, Abuja.
The Respondent
The Director of Public Prosecutions,
Federal Ministry of Justice,
Abuja.
Dated this……….day of May, 2008
______________________________
APPELLANT
FALANA & FALANA’S CHAMBERS
PLOT 20, T.Y. DANJUMA STREET,
(OPP. KEBBI STATE GOVT. LODGE)
ASOKORO, ABUJA
FOR SERVICE ON:
THE RESPONDENT
C/O THE DIRECTOR OF PUBLIC PROSECUTIONS,
FEDERAL MINISTRY OF JUSTICE,
ABUJA.
Director of Public Prosecutions,
Federal Ministry of Justice,
Maitama District,
Abuja, F.C.T.
Dear Mr. Aliyu,
RE: CHARGE NO: FHC/ABJ/CR/178/2007
FEDERAL REPUBLIC OF NIGERIA V. HENRY OKAH
The above subject matter refers.
It would be recalled that the learned trial judge, Adah J. delivered two rulings on your application for secret trial of the Accused and the taking of his plea when he had not been served with the proof of evidence in the charge of treason, treasonable felony etc being prosecuted by your good self.
Dissatisfied with both rulings our client instructed us to challenge them on appeal. Accordingly, the Notice of Appeal prepared by us is ready for filing but our client is required to sign same pursuant to Order 16 Rule 4(1) of the Court of Appeal Rules (Practice Direction No. 2 of 2007).
As our client is held incommunicado in an undisclosed military custody (contrary to the Order of the Federal High Court that he be kept in the custody of the State Security Service) we are compelled to request you to forward the Notice of Appeal attached to this letter to him forthwith.
It will be appreciated if you can ensure that the Notice of Appeal is signed by our client and returned to us not later than Friday, 9th May, 2008 to enable us to file same without any delay.
Yours sincerely,
FEMI FALANA ESQ.
FORM 3
IN THE COURT OF APPEAL
HOLDEN AT ABUJA
CHARGE NO: FHC/ABJ/CR/178/2007
APPEAL NO:…………………………...
BETWEEN
HENRY IMOMOTIMI OKAH )… APPELLANT/APPLICANT
AND
FEDERAL REPUBLIC OF NIGERIA )… RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE that the Applicant being dissatisfied with the decision of the Federal High Court contained in the judgment of the Honourable Justice S. Adah delivered on the 2nd May, 2008 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
AND THE APPELLANT FURTHER STATES that the names and addresses of the persons directly affected by the Appeal and those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF
The whole decision.
3. GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law when he held that the order ex parte for the secret trial of the Appellant made by Binta Nyako J. on 12th March, 2008 was “an interim order even if not specified”.
PARTICULARS OF ERROR
i. The order ex parte was perpetual in nature and scope as it was made to last throughout the trial of the Appellant.
ii. The motion ex parte was not filed along with any motion on notice.
iii. The order ex parte was granted without any return date.
iv. The order ex parte was not predicated on a pending motion on notice.
GROUND TWO
The learned trial judge erred in law when he granted the application of the Respondent for the trial of the Appellant in camera.
PARTICULARS OF ERROR
i. The application was incompetent as it was not by a Minister of the Government of the Federation as stipulated by Section 36(4) of the Constitution.
ii. The affidavit evidence in support of the application for secret trial offends Sections 86 and 87 of the Evidence Act.
iii. There was no evidence that any Minister of Government of the Federation or Commissioner of the Government of a State satisfied the learned trial judge that it would not be in the public interest for the trial of the Appellant to be publicly disclosed.
iv. The order for the trial of the Appellant in camera was not made “in the public interest” pursuant to Section 36 of the Constitution.
GROUND THREE
The learned trial judge erred in law when he held that if the trial is covered by the press it might expose Nigeria’s military capabilities to the outside world.
PARTICULARS OF ERROR
i. There was no evidence to support the speculative finding of the learned trial judge that Nigeria’s military capabilities might be exposed to the outside world.
ii. The Appellant was charged with treason and not espionage.
GROUND FOUR
The learned trial judge erred in law when he held that the Appellant was not entitled to be served with the proof of evidence before pleading to the charge of treason, treasonable, felony, illegal possession of firearms, incitement of the military etc.
PARTICULARS OF ERROR
i. The taking of plea is part of the defence of the Appellant.
ii. By virtue of Section 36(5) of the Constitution the Appellant is entitled to be provided with all facilities for the preparation of his defence.
iii. The proof of evidence of part of the facilities envisaged by the Constitution.
iv. The prosecution has undertaken to make the proof of evidence available to the Applicant.
GROUND FIVE
The learned trial judge erred in law when he entered a plea of “Not Guilty” for the Appellant in the 55-count charge when only counts 1 and 2 were read to him by the Court Registrar.
PARTICULARS OF ERROR
i. Having regard to the facts and circumstances of the case and arraignment of the Appellant offends Section 215 of the Civil Procedure Act.
ii. The Appellant’s complaint that he was fettered by his dehumanizing detention conditions was ignored by the learned trial judge who proceeded suo motu to enter a plea of “Not Guilty” for him.
GROUND SIX
The learned trial judge erred in law when he held that the Press would be briefed when necessary after every Court proceeding.
PARTICULARS OF ERROR
i. Having ruled that the trial shall be conducted in camera the learned trial judge has no power to engage in press briefing in respect of the criminal proceedings.
ii. There is no provision for press briefing by a trial judge under Section 36(4) of the Constitution.
4. RELIEFS SOUGHT
1) AN ORDER setting aside the ruling of the lower Court delivered on May 2, 2008.
2) AN ORDER setting aside the plea of “Not Guilty” entered for the Appellant by the learned trial judge.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL AND ADDRESSES
The Appellant
C/o His Counsel
Falana & Falana's Chambers
Plot 20 T. Y. Danjuma Street,
Opposite Kebbi State Governor’s Lodge,
Asokoro, Abuja.
The Respondent
The Director of Public Prosecutions,
Federal Ministry of Justice,
Abuja.
Dated this……….day of May, 2008
______________________________
APPELLANT
FALANA & FALANA’S CHAMBERS
PLOT 20, T.Y. DANJUMA STREET,
(OPP. KEBBI STATE GOVT. LODGE)
ASOKORO, ABUJA
FOR SERVICE ON:
THE RESPONDENT
C/O THE DIRECTOR OF PUBLIC PROSECUTIONS,
FEDERAL MINISTRY OF JUSTICE,
ABUJA.
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