It has been revealed that the Islamic Movement in Nigeria has obtained at least 6 favourable judgements against the government in the past four years alone. This was disclosed by Barrister Haruna Magashi in a 37 paragraph affidavit sworn in support of the application seeking an order setting aside, discharging and/or vacating the ex parte order of the Federal High Court made on the 26th July 2019, proscribing the existence and activities of the Islamic Movement in Nigeria in any part of Nigeria under whatever form, either in groups or as individuals by whatever names they are called or referred to.
Magashi listed the six cases that went in favour of the Islamic Movement in Sokoto, Kaduna and Kano states, including the one the government used to mislead the court into granting the ex parts order.
He said that contrary to the depositions of the government in their affidavit in support of the motion ex-parte, it is the government’s security Agencies that have at all times provoked the members of the Movement, violently attacking them and, destroying their properties and killing innocent members across the States in Nigeria.
The affidavit was supported by a number of exhibits consisting of judgements and reports. He said that the Islamic Movement has always resorted to seeking redress in the judicial system and the numerous judgements it had obtained in its favour is a clear contradiction to what the government falsely told the Court to label members of the Islamic Movement a terrorist organization without any justification or valid evidence of any act of terrorism associated with members.
Read below the Motion on Notice in the Suit No FHC/ABJ/CS/876/2019 filed at the Federal High Court, Abuja and the affidavit in support:
IN THE FEDERAL HIGH COURT
IN THE ABUJA JUDICIAL DIVISION
SUIT NO: FHC/ABJ/CS/876/2019
ATTORNEY GENERAL OF THE FEDERATION APPLICANT/RESPONDENT
ISLAMIC MOVEMENT IN NIGERIA RESPONDENT/APPLICANT
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 26 RULES 6(1) 9 AND 10 OF THE FEDERAL HIGH COURT RULES 2019, SECTION 6(6)(1)(4), SECTION 36,39 AND 40 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) 2011 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that this Honorable Court shall be moved on the ___ day of ___ 2019 at 9Oclock in the forenoon or so soon thereafter as counsel to the Respondent/Applicant maybe head praying this Honorable Court for the following orders:-
1. AN ORDER setting aside, discharging and/or vacating the ex parte order of this Honorable Court made on the 26th day of July 2019, Coram: N.E. Maha, J, in Suit No: FHC/ABJ/CS/876/2019 between: Attorney General of the Federation V. Islamic Movement in Nigeria proscribing the existence and activities of the Respondent/Applicant (Islamic Movement in Nigeria) in any part of Nigeria under whatever form, either in groups or as individuals by whatever names they are called or referred to.
2. AN ORDER setting aside, discharging and/or vacating the ex parte order of this Honorable Court made on the 26th day of July 2019, Coram: N.E. Maha, J, in Suit No: FHC/ABJ/CS/876/2019 between: Attorney General of the Federation V. Islamic Movement in Nigeria restraining any person or group of persons from participating in any manner whatsoever in any form of activities involving or concerning the prosecution of the collective intention or otherwise of the Respondent/Applicant (Islamic Movement in Nigeria) under any other name or platform howsoever called or described in any part of Nigeria.
3. AND FOR such further or other order(s) this Honorable Court may deem fit to make in the circumstances.
GROUNDS FOR THIS APPLICATION
That the ex-parte order made on the 26th day of July 2019, by this Honorable Court was made without jurisdiction, as the order was made against a non-juristic body.
This Honorable Court on the 26th day of July, 2019 pursuant to an ex parte application brought by the Applicant/Respondent, made an order, inter alia, proscribing the existence and activities of the Respondent/Applicant (Islamic Movement in Nigeria) in any part of Nigeria under whatever form, either in groups or as individuals by whatever names they are called or referred to without affording the Respondent/Applicant the right of fair hearing.
The said order of the Honorable Court breached the fundamental right of all members of the Respondent/Applicant, the Islamic Movement in Nigeria to fair hearing guaranteed by Section 36 of the 1999 Constitution (as amended) and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation, 2004 in that no fair hearing was granted the applicant/respondent before the order was made.
The order ex parte granted by this Honourable Court has violated the fundamental right of members of the Respondent to freedom of thought, conscience and religion guaranteed by Section 38 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended.
The order ex parte granted by this Honourable Court has breached the fundamental right of the members of the Respondent to freedom of assembly and association guaranteed by Section of the Constitution of the Federal Republic of Nigeria, 1999 as Amended.
The Honourable Court did not grant the declaration that the activities of the Respondent (Islamic Movement of Nigeria ) in any part of Nigeria amounts(sic) to acts of terrorism and illegality.
There was no urgency warranting the grant of the order ex parte.
No Motion-on-Notice was filed together with the Motion Ex Parte.
The Ex Parte order made by the Honorable Court has determined the fundamental right of the Respondent/Applicant without affording it fair hearing.
No undertaking was made as to damages.
The order Ex Parte was anchored on misrepresentation of material facts and based on suppression of material facts.
The order ex parte constitutes a gross abuse of the process of this Honorable Court.
DATED IN ABUJA, THIS 1st DAY OF August 2019
FEMI FALANA, SAN,
FUNMI FALANA, (MRS),
A U AJODO ESQ,
SAMUEL OGALA, ESQ,
H.G MAGASHI, ESQ
DEJI MORAKINYO, ESQ,
MARSHAL ABUBAKAR, ESQ,
FALANA & FALANAS CHAMBERS,
22, MEDITERRENEAN STREET,
ATTORNEY GENERAL OF THE FEDERATION,
MINISTRY OF JUSTICE HEADQUARTERS,
IN THE FEDERAL HIGH COURT
IN THE ABUJA JUDICIAL DIVISION
SUIT NO: FHC/ABJ/CS/876/2019
ATTORNEY GENERAL OF THE FEDERATION APPLICANT/RESPONDENT
ISLAMIC MOVEMENT IN NIGERIA RESPONDENT/APPLICANT
SUPPORTING AFFIDAVIT OF THE RESPONDENT/APPLICANT IN RE: MOTION-ON-NOTICE
I, HARUNA GARBA MAGASHI ESQ, Male, Adult, Muslim, Nigerian citizen and Legal Practitioner of NO 4C, Zainab House, Murtala Mohammed Way, Kano State do solemnly depose to this affidavit and state as follows:
That I am a Legal Practitioner and a Shiite Practicing Muslim in Nigeria under the Leadership and Guidance of SHEIKH IBRAHEEM ZAKZAKY.
That by virtue of my above position, I am very familiar with and well abreast of the facts given rise to the instant application of the Respondent/Applicant.
That I have the consent and authority of other Shia members to depose to this affidavit.
That the facts deposed to herein are facts within my personal knowledge (except wherein expressly stated) which I became conversant with as a Legal Practitioner and a member of the Shia religious community over the years.
That I and other millions of Nigerians are members of the Islamic Movement of Nigeria, the Respondent/Applicant herein.
That I read in the electronic media on July 27, 2019 that this Honourable Court granted an order ex parte proscribing the existence and activities of the Respondent in any part of Nigeria and an order restraining any person or group of persons from participating in any form of activities involving or concerning the prosecution of the collective intention or otherwise of the Respondent under any other name or platform whatsoever caked or described in any part of Nigeria. Find attached the electronic version of the Punch Newspaper of July 27, 2019.
That I and other members of the Respondent have not been served with a copy of the said order ex parte made by this Honourable Court on July 26, 2019.
That the Respondent/Applicant was never afforded the opportunity to defend the allegation made against it by the Applicant/Respondent before the ex-parte order was made contrary to the provision of Section 36 of the 1999 Constitution (as amended) and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Laws of the Federation, 2004.
That in granting the order, no return date was given by this Honorable Court for the hearing of Motion-on-Notice in respect of the ex-parte motion.
That I know as a fact that the Applicant/Respondent did not file a Motion-on-Notice together with the Motion ex-parte upon which this Honourable Court made the order which we seek to set aside.
That the ex-parte order made by the Honorable Court has determined the fundamental rights of the Respondent/Applicant without affording it fair hearing.
That I also know as a fact that no undertaking was made by the Respondent/Applicant as to damages.
That the Applicant suppressed and misrepresented material facts.
That I have read the facts of the affidavit in support of the motion ex-parte and I know that they are all false and that this Honourable Court was misled to believe them to be true before granting the Ex parte order.
That the Respondent is a friendly society of members of the Shia Muslims in Nigeria who follow the teachings and guidance of Shiekh Ibraheem Elzakyzaky.
That the Respondent is not a corporate body as it has not been registered under any law in Nigeria.
That the activities of the members of the Respondent are non-violent but peaceful and they have been in existence since the 1970s in Nigeria as a Muslim body.
That I have also seen a copy of the affidavit deposed to by one ENYINNAYA ADIOGU an Assistant Commissioner of Police in Charge of Operations in the FCT Command of the Nigeria Police in support of the motion ex-parte and knows that the facts contained therein are misleading, vexatious and false.
That the facts contained in the said affidavit of ENYINNAYA ADIOGU contain strong allegations of criminality against the members of the Respondent/Applicant for which they have not been tried and found guilty by any competent court.
That this Honourable Court relied on the content of the said affidavit to grant the orders proscribing the Respondent/Applicant without first giving the Respondent/Applicant the right to be heard and defend itself.
That contrary to the depositions of the Applicant/Respondent in their affidavit in support of the motion ex-parte, it is the Federal Government of Nigeria and its Security Agencies that have at all times provoked the Respondent/Applicant members, violently attacking them and, destroying their properties and killing innocent members of the Respondent/Applicant across the States in Nigeria.
That this unwarranted attack was taken to a new height in December 2015 while the Respondent/Applicant members were celebrating the beginning of Maulud which is the birthday anniversary of the Holy Prophet Muhammad (PBUH) when the Nigerian Army led by its Chief of Army Staff, LT. GEN. TUKUR BURATAI launched a vicious attack on peaceful worshippers of our members gathered at Husainiyya Baquiyyatullah our worship center at No 1A Sokoto Road Zaria, Kaduna State.
In the said attack, properties worth millions of naira were destroyed and several armless and defenseless worshippers numbering over 1000 and including men, women and Children, the aged and people with disabilities. Find attached and marked as EXHIBIT A are series of photographs, and newspaper publication of the massacre in Zaria Kaduna State between 12th-15th of December 2015 which was adjudged the most colossal and monumental in recent history by both local and international media.
That on or about the same time, the Nigerian Army also proceeded to the House of our Leader SHEIKH IBRAHEEM ZAKZAKY where they killed and injured many armless worshippers including three Children of our leader and his Senior Sister who was set ablaze by rampaging members of the Nigerian Army.
At the end of the attack about 1000 of our members were killed by the members of the Nigerian Army, our leader and his wife were also fatally wounded from gunshots in the attack and subsequently taken into custody till date without any medical attention.
That the judicial commission of inquiry instituted by the Kaduna State Government confirmed the brutal massacre and burial of members of the Respondent.
That the recommendation of the Judicial Commission that the murderers of the 347 members of the Respondent has not been carried out by the Respondent.
That shortly after the attack and subsequent arrest and detention of our Leader SHEIKH IBRAHEEM ZAKZAKY and his wife, this Honourable Court ordered the release of himself and his wife in SUIT NO: FHC/ABJ/CS/281/2016 and also ordered that they be paid the sum of N50, 000,000.00 (Fifty Million Naira) as damages and further directed the Applicant/Respondent to build a house for them in any of the 19 Northern States of their Choice with full Police Protection. Find attached and marked as EXHIBIT B is a certified true copy of the judgment.
That the Applicant/Respondent has refused to comply with that judgment till date.
That it is the failure of the Applicant/Respondent to comply with the said judgment that led to several peaceful processions by Members of the Respondent/Applicant in the city of Abuja and other major cities in Nigeria to draw the attention of the Applicant/Respondent to their continuous violation of the rights of our leader and their disobedience of a valid court order.
That the Applicant/Respondents agent, the Nigerian Army killed 3 sons of Shiek Ibraheem El ZakyZaky, the leader of the Islamic Movement in Nigeria in 2014.
That the current governor of Kaduna State, Mr. Nasir El Rufai paid a condolence visit to Sheik El Zaky Zaky at the material time.
That Mr. El Rufai condemned the military attack and described the murderers as Jonathan Genocidal Army. Find attached Mr. El Rufai message on the occasion.
That the members of the Respondent have obtained 6 judgments against the applicant and its agents in the last four years.
That contrary to the orders of the Federal High Court the Applicant has violently attacked the peaceful rallies of the members of the Respondent and in the process killed hundreds of them.
That the Applicant/Respondent has never been comfortable with the activities of the Respondent/Applicant and had at all times employed the use of force, harassment, intimidation and violence to stop the peaceful protest.
That the police and other security agencies have killed several of the armless protesters in the city of Abuja and other cities in Nigeria during their peaceful procession and religious gathering recently and have refused to release the bodies of some of the victims for burial till date.
That the Applicant/Respondent having failed to achieve their aim of using violence to coarse the members of the Respondent/Applicant from continuing with their peaceful procession and religious gathering for the release of their leader have now come to this Honourable Court to use judicial means to label members of the Respondent/Applicant a terrorist organization without any justification or valid evidence of any act of terrorism associated with the Respondent/Applicant members.
That members of the Respondent/Applicant are very peaceful and law-abiding citizens of Nigeria who have at all times resorted to the practical application of rule of law to challenge the atrocities of the security agencies against the members of the Respondent/Applicant and have won several court cases against the Applicant/Respondent as against their deposition in the affidavit in support of their ex-parte application which they relied on to mislead this Honourable Court into granting the said ex-parte order.
That the judgments delivered in favour of members of the Respondents by the Federal High Court and the High Courts of Sokoto State, Kaduna State and Kano STate are as follows:
In the STATE V. KASIMU MOHAMED UMAR & 2 ORS IN SUIT NO:SS/7C/2018 the High Court of Justice in Sokoto State discharged and acquitted the Accused Persons who were charged with criminal conspiracy and culpable homicide punishable with death. Find attached and marked as EXHIBIT C is a copy of the judgment.
That in MAL.KASIMU MOHAMED UMAR and 111 ORS V. COP in APPEAL NO: CA/S/71/2014 the court of Appeal Sokoto Division discharged and acquitted the Accused persons of the offences of criminal conspiracy, rioting, armed with dangerous weapons, inciting, breach of the peace etc brought against the members of the Respondent/Applicant by the Applicant/Respondent. Find attached and marked as EXHIBIT D is a copy of the judgment.
That both landmark judgments counter the allegation of the Applicant/Respondent at paragraph 4(c) (ix) of the affidavit in support of the motion ex-parte that it was members of the Respondent/Applicant that killed the Late Islamic Cleric Umar Dan Maishiyya in Sokoto State.
That following the bloody Zaria incident of 2015 wherein the Nigerian Army massacred members of the Respondent/Applicant, some members of the Shia community and survivors of the massacre were arrested and charged before the High Court of Kaduna State for alleged criminal conspiracy and culpable homicide in the case of THE STATE V ALIYU MOHAMED SANI & 9 ORS IN SUIT NO:-KDH/KAD/38C/2016. However, they were all discharged and acquitted at the end. A copy of the judgment is hereby attached and marked as EXHIBIT E.
Also in THE STATE V. MOHAMMED AUWAL YAKUBU & 39 ORS with SUIT NO: KDH/KAD/37C/2016 the Kaduna State High Court also discharged and acquitted members of the Respondent/Applicant who were falsely charged with the offences of criminal conspiracy, culpable homicide, unlawful assembly, disturbance of public peace and wrongful restraint. Find attached and marked as EXHIBIT H is a copy of the ruling of the court.
And in the case of YUSUF MAGAJI ABDULLAHI & 4 ORS V COP KANO in SUIT NO:K/M582/2018 the Kano State High Court declared amongst others as follows:-
The Applicants are entitled to peaceful practice of their religion either alone or in community with others in public or in private.
A declaration that the violent attacks, torture, harassment arrest and detention of the applicants on the 5th November 2017 by the men of the Kano State Police Command under the instruction of the respondent is an infringement of the applicants fundamental rights and therefore unconstitutional.
An injunction restraining the respondent either by himself or any other person(s) acting under his instruction from any further harassment, molestation, and violating, attacking or arresting the applicant during their peaceful religious activities in Kano. Find attached is a copy of the order marked as EXHIBIT I.
That contrary to the depositions of the Applicant/Respondent in their affidavit in support of their motion ex parte, several internal well known organizations have documented the incident of December 2015 wherein the Nigerian Army, an Agent of the Applicant/Respondent where indicted. Find attached and marked as EXHIBIT J and K are copies of such reports.
That the facts deposed herein are the true state of affairs between the Applicant/Respondent and the Respondent/Applicant members.
That the Respondent/Applicant members are a set of religious worshippers whose right to worship has being violated by the order of court herein.
That the members of the Respondent/Applicant are Nigerian Citizens whose fundamental right to peaceful assembly, religious worship and right to peaceful procession is guaranteed under the 1999 Constitution of Nigeria and under the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 2004 .
That unless the order by this Honourable Court made on the 26th of July 2019 proscribing the activities of the Respondent/Applicant is set aside or discharged in its entirety, the Respondent/Applicants members rights to freedom of worship, procession and peaceful assembly as Shiites Muslim Practitioners in Nigeria will be completely eroded and that the Applicant/Respondents by their conduct exhibited so far will stop at nothing to ensure that our rights are continually violated under the guise of enforcing the order of this Honourable Court.
That the Applicant/Respondent will not be prejudiced in any way should this Honourable Court grant this application seeking to set aside the orders made on the 26th of July 2019 against the Respondent/Applicant.
That I do solemnly and sincerely declare, that I make this solemn declaration in good faith, conscientiously believing the contents to be true and correct and in accordance with the Oaths Act.
SWORN TO AT THE REGISTRY OF THE FEDERAL HIGH COURT, ABUJA,
THIS———DAY OF AUGUST, 2019
COMMISSIONER FOR OATHS