Justice James Tsoho, who rejected the prayer yesterday, also said he would shield prosecution witnesses from public glare, following complaints by the prosecution that its witnesses were being threatened.
Kanu, David Nwawusi and Benjamin Madubugwu are being tried on a six-count of treasonable felony, unlawful possession of firearms and other offences because of their agitation for a sovereign state of Biafra.
Defence lawyer Chuks Muoka (SAN) argued that the prosecution had shown high level of impunity since his clients were first taken to court last October, and had not been serious with the prosecution of the case.
Muoka urged the court to dismiss the complaint by the prosecution about its inability to proceed without its witnesses being shielded.
He urged the court to be guided by Section 351(1) of the Administration of Criminal Justice Act (ACJA) 2015 in dismissing the charge against the defendants.
“It is not that the court is not prepared to hear this case, not that the defendants are not ready for trial, but that the prosecution is not ready.
“I apply that the charge against the defendants be dismissed and they be discharged and acquitted. And the prosecution not giving an opportunity to disregard the court; the court should make an order restraining the prosecution from further arraigning or arresting the defendants based on this or similar charges.”
Before his submission, Muoka invited one of his junior colleagues, Ifeanyi Ejiofor, who told the court that some men of the Department of State Service (DSS), with whom he had altercation, had threatened to kill him. He urged the court to take note of the alleged threat to his life.
Prosecution lawyer Muhammad Diri told the court that the prosecution was ready for trial, but that its witnesses were scared. He said some of the witnesses complained of receiving threat calls and urged the court to vary its order of February 19 to shield witnesses from public glare.
Diri, who is the director of Public Prosecution of the Federation (DPPF), faulted Muoka’s reliance on Section 351 of the ACJA, saying it was not applicable to the case.
“The section talks about the non-appearance of the prosecution. We have not said we are unprepared to prosecute this case or that our witnesses are not available. They are available and willing to attend court.
“Our application is for the court to slightly vary its order to some level of protection for our witnesses, who are being threatened,” he said.
Diri also told the court that he got information from some operatives of the DSS that there was a plot to abduct the defendants in court.
Justice Tsoho upheld Diri’s argument that Muoka’s reliance on Section 351 of the ACJA in asking for his clients to be discharged was misconceived.
He said the prosecution’s request to shield its witnesses from public glare, but opened to the judge and lawyers, is not reopening an issue decided.
Justice Tsoho said the application to allow prosecution witnesses testify behind a screen to protect them from the public is a fallout of the order granted by the court and it is informed by new development.
“The court is disposed to granting the application by the prosecution to allow the prosecution witnesses testify behind a screen to shield them from public glare,” he said.
The judge assured Muoka that the arrangement for witness protection would be first demonstrated for parties to see before it is adopted for proceedings the next date.
Mouka expressed concern about the conduct of proper proceedings where witnesses were not seen. He said such arrangement was alien to him in his over 40 years of practice.
Justice Tsoho adjourned to March 9 for trial.