By: Our Special Report Correspondent The much anticipated report of the Judicial Commission of Inquiry probing the May 7 massacre of security operatives in Alakio, may not see the light of the day for a very long time to come.
This is because the group at the centre stage, ‘Omatse’ has headed to court to restrain Nasarawa Governor, Tanko Al-makura from either receiving or implementing the report.
Our correspondent in this special report detailed the ongoing legal fireworks between Omatse group and the State Government and also spoke with the group’s counsel, Zachary Zamani Allumuga.
In the suit filed by the legal adviser of Ombatse, Mr Allumuga on behalf of the group, he sought reliefs for the abuse of its of fundamental human rights and an injunction to stop the commission from submitting its report and the state government from receiving the report and releasing the white paper.
The state governor and the commission seem to have fallen into the Ombatse legal adviser’s trap as they have shown prove that they have been served the affidavit and responded swiftly to the issues raised by Allumaga.
In a detailed counter affidavit filed by the secretary of the commission, Abubakar Sadiq Ishaq who doubles as the Permanent Secretary Cabinet Affairs in the Office of the Secretary to the State Government, SSG, the commission vehemently accused the ombatse group of perpetrating evil which has held the state to ransom.
Abubakar who declared that he was working under the authority of his chairman and other members of the commission ascertained that the commission received a total of 22 memoranda and found the ombatse group culpable of the offences leveled against it.
“That I know as a fact that a total of 22 memoranda were received by the commission and out of these numbers of the memoranda, 6 came from ombatse group said to be represented by one Zachary Zamani Allumuga the applicant.
“That I read the supporting affidavit by applicant and the memoranda submitted by all other persons, groups and/or communities affected by the crises that led to the setting up of this commission and I know as a fact that the said memoranda received revealed that the ombatse
group proscribed by the state government is opposite of what the applicant (Allumuga) claimed the group represents as deposed in paragraph 5,6,7,8,9,10,12,13 and 14 of the said supporting affidavit of the Ombatse.
“That I know as a fact that the memoranda received from various communities and persons that were attacked by Ombatse group showed that the ombatse group is an ethnic militia that engages in killing, maiming, looting and dangerous acts that are inimical to good government, peace, and security of Nasarawa state, “he said.
The commission’s secretary stated that despite the proscription of the ombatse group, the group continued to unleash terror, mayhem, killing and destruction of lives and properties.
He described the suit filed by the Ombatse group as useless as according to him, the group cannot “demonstrate any wrong done to, to be done, or likely to be done to the applicant by the commission to necessitate the action filed against the commission”.
In a second counter affidavit filed by the permanent secretary of Planning commission Suleiman Muhammed , who was the then Permanent Secretary of health when he represented the governor at Alagoni Hills on February 2, deposed that he was authorized by Governor Al-makura and
the Attorney General of the state to respond to Allumaga’s suit.
He countered the claim made by the Ombatse legal adviser that the group is out to promote peace and cleanse the ills of the society saying the group is an “ethnic militia that engages in killing,
maiming, looting, and doing other dangerous acts that are inimical to the good government, peace and security of the state.
Responding to the allegation raised by Allumuga that Governor Al-makura’s representative was at their gathering after its proscription, the Permanent secretary said he represented the governor
at the occasion because they were informed that the group was ready to turn a new leaf.
“That on the 2nd of February 2013, i was with the Governor of Nasarawa State whereof he informed me and i verily believe him to be true that the Ombatse group had realized that what they have been doing threatening that peace and security of the state in particular blocking of public high ways and molesting passersby and innocent Nigerians on 17th of November 2012 was illegal, unlawful and regrettable and that they were now remorseful and want to turn over a
new leaf and to be reintegrated into the society.
“That the members of Ombatse group through their leaders have invited him to visit them and receive them and integrate them into society.
That he was preparing to go there and receive them since the Ombatse group has turned over a new leaf according to them. That the governor could not make the journey due to other pressing state matters whereof I was directed by His Excellency to represent him and receive them.
That i was given phone number of the person to call to direct me to the venue of the place prepared to receive the Governor of Nasarawa State.
That I was directed, I got to the venue , I met chairs and canopies well arranged to receive the governor and not any prayer ground as falsely depose by the applicant.
“That on getting to the venue i was introduced to the gathering and their spokes person said that they were happy that the governor was willing to receive them back into the society to be reintegrated as useful persons and citizens. That i responded by welcoming their ideals of renouncing the conduct that is inimical to peace, and development and that he governor is happy with the ideas of repenting from their evil ways and it was due to that, that he sent me to
represent them.
That after all, said and done, they made two requests that day to the effect that they needed the hospital in Nasarawa Eggon to be fenced and that i should plead with the governor to intervene for the release of some of their members that were arrested by security operatives,” he said.
The counter affidavit to Ombatse’s application seems to be endless as the government also employed the services of it law firm J.S Okutepa, SAN and company to give response to the grave allegations raised against the state governor and the commission at the State High Court
of Justice. OKutepa SAN urged the Honourable Judge of the State High Court to dismiss the application filed by Ombatse legal adviser seeking for redress of the abuse of their fundamental human right.
He declared that the Ombatse group “has woefully failed to make out a case under the Fundamental Human Right Enforcement Procedure Rules, or any other law for that matter to be entitled to any of the reliefs sought”.
Barrister Okutepa SAN noted that” the ombatse group on whose behalf the claim is brought is neither a registered association nor a human being, nor known to law and is therefore devoid of any jurist personality to bring an action or authorize the filing of an action either in its name or in the name of any of its members”.
He posited that the court cannot speculate on Ombatse’s membership as they are undisclosed, unknown and consequently non-existent.
“The question to be asked is whether a non-existent person can authorize an act? It is not a doubt that this action is purportedly filed by Zachary Zamani Allumuga for himself and on behalf of the Ombatse group. There is nothing to show that the Ombatse group is a legal person, capable of suing and being sued”.
Okutepa however, admitted that legislative process may not have been followed in the law that proscribed Ombatse but said it doesn’t amount to the abuse of fundamental human right.
“Even if there was a failure to follow due process, which is not conceded, such failure we submit does not grant a cause of action under a fundamental human right enforcement procedure. It is not a fundamental right question to fail to follow a process in making law”, he declared.
The legal consultant to the Nasarawa state governor also said that the Ombatse group lack substantial evidence to seek relief from court.
“The case of the applicant will be bereft of evidence upon which this Honourable Court can grant the relief sought by the applicant (Allumuga). It is the duty of any party seeking declaratory reliefs to furnish sufficient evidence as those reliefs cannot be granted for mere asking,” he said.
He however, prayed the court to deprecate the ‘unholy’ attempt to bring within the ambit of Fundamental right procedure Rule causes that are far outside and not covered by the Fundamental Right enforcement Procedure Rules 2009.
Reacting to the commission and the governor’s counter affidavit, the legal adviser of Ombatse group Barrister Zachary Zamani Allumuga said their response to affidavit has pre-empted the report of the commission.
“It is very unfortunate that the commission’s report has been pre-empted. You will get from the terms of reference. The terms of reference of the commission is saying go and find out the involvement of ombatse members. Go and find out how involved they are. And the commission is saying that Ombatse is engaged in killing, destruction, maiming and arson. That is what the secretary of the commission deposed to in his counter affidavit and found as a fact. And he said
he has the authority and consent of the chairman and members of the commission to depose to the affidavit.
“In his disposition, he said he knows that ombatse group in spite of the ban is still going on and its activities are to kill, to maim, to destroy and to cause arson. If the commission is of that position, that is their disposition. And that was what they were asked to find out. The only aspect of the commission’s report remaining now is who and who are members of Ombatse that’s all”, he connoted.
The legal adviser also disclosed that the rationale behind his suing the governor and commission to court was the injustice perpetrated by the commission’s judge during the proceedings as he gave instance of how the commission’s chairman shielded the governor over the one
million naira gift.
He added that, the conduct of the chairman and members of the commission made him to lose confidence in the report of the commission.
Allumuga also debunked Governor Al-makura’s claim that the presence of his representative at Alagoni hills on February 2, 2013 was to reintegrate the group back to the society saying the governor’s representative was at the prayer ground to promise them logistics that would aid their activities.
He added that a video clip would be produced in due time to substantiate his claims.
On the issue raised by Barrister Okutepa SAN that Ombatse group is not a registered group hence, cannot sue or be sued Allumuga responded by saying he would remain silent for the court to determine its status.
“I will allow the court to determine that. If an organization is not registered, i will appreciate that. But, if you take illegal steps to ban that organization, it has been recognised. Government has banned an illegal institution, yes, we will have to test to see if we are illegal. The constitution allows freedom of association.
Is it the association that is illegal, you will have to prove that”, he said.
Allumuga also submitted that with the response of the Governor Al-makura through his permanent secretary and the commission through its secretary, the submission of the commission’s final report will be hampered. He added that, their response is an indication that both parties have been served the affidavit.
“Their response to my affidavit has hampered the submission of the commission’s report. Are they going to resort to self help? Is the state government going to resort to self help? Is the commission going to resort to self help? I said commission don’t submit report, state government don’t collect report and bring out white paper. He went on and said he knows that this people are responsible for it. Let the court decide. That is by law the submission of the commission’s report
will be pending on the determination of the court. Even if they didn’t reply but that they have been served they cannot do anything again.
Because they have taken steps towards the matter”, he declared. The ombatse group had on October 20 filed a case at the High Court of Justice of Nasarawa State against the state governor, the arttoney general and the Judicial Commission of Inquiry probing Alakio killings
and other related matters.
In the suit, the ombatse group opposed their proscription saying the Nasarawa state notice No.4 of 2012 made by the governor of the state is illegal, unlawful and unconstitutional.
According to Allumaga, the rationale for their assertion is because neither him nor any member was invited to be heard before the proscription was pronounced.
He also declared that “the condition precedent to the exercise of the power of proscription by the Governor of Nasarawa State Under S. 97 A of the penal code laws of the Northern Nigera 1963 as applicable to Nasarawa State not having been complied with the legislative making process as provided by the 1999 constitution of the Federal republic of Nigeria, renderd the said penal code order null and void and have no effect whatsoever for violation of the fundamental human right of the group”.
He declared that by virtue of S. 40 of the 1999 constitution of Nigeria, the Ombatse group has the right and freedom to assemble freely and to associate with other persons in accordance with the constitution guiding the country.
The legal adviser requesting an order of the Honourable Court nullifying the law no 4 of the penal code proscribing the group and giving them liberty to operate without restrictions.
He also prayed the court to restrain the governor and the commission of inquiry from interfering with their liberty, rights and privileges of the Ombatse group.
Barrister Allumaga also sought for an injunction to restrain the attorney general of the state and Nasarawa State government from receiving and implementing report of the of the commission because the commission was set up on a faulty law.
An award of Five hundred million naira was also requested by the group for breach of their fundamental human right.