By Onyedikachi Ifedi, Esq.
Before: Hon. Justice James K. Omotosho (Federal High Court, Abuja)
1. Opening Proceedings
At the resumed hearing on 5 November 2025, Mazi Nnamdi Kanu, appearing in person, requested a brief five-minute recess in the Judge’s chambers, explaining that what he had to disclose might “embarrass the judiciary of Nigeria” if said in open court.
Justice Omotosho declined the request, directing that all submissions be made publicly.
Mazi Kanu then proceeded to seek to adopt his Motion on Notice and the accompanying Written Address, urging the Court to grant the reliefs sought.
Awomolo SAN objected and the court sided with Awomolo that Kanu should not talk about his filed Motion challenging the non-existence of any law charging the offences for which he is accused of. That the court will take it at the end of trial.
Kanu was visibly annoyed but he maintained a composed and firm demeanour throughout the session. Justice Omotosho was notably attentive and cautioned Kanu to keep his powder dry and to consult a criminal lawyer. Justice Omotosho flatly resisted entertaining arguments on the constitutional validity of the charge and jurisdiction at today's hearing. Kanu however proceeded to address the court on the issues why he would not enter his defence.
2. Core of the Oral Adumbration
Mazi Kanu’s address centered on the jurisdictional foundation of the case. His submission was that the entire trial is void ab initio because it rests on a repealed law, namely the Terrorism (Prevention) (Amendment) Act 2013 (TPAA 2013), which ceased to have legal existence following the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022).
He argued that jurisdiction is the lifeblood of adjudication, not a procedural formality, citing the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341, which held that a court is competent only when the case comes before it under a valid, subsisting law.
3. Argument I — Jurisdiction Ceases When Enabling Statute Is Repealed
Kanu cited the Supreme Court’s decision in Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 at 753, where the Court held:
“When an enabling law is repealed, any right, privilege or proceeding founded upon it automatically collapses. It cannot be saved by judicial contrivance or implication.”
He emphasized that once a statute is repealed, any trial under it is ipso jure null and void, since the law ceases to confer jurisdiction.
4. Argument II — Section 36(12) and Section 1(3) of the Constitution
Kanu read out Section 36(12) of the 1999 Constitution (as amended):
“A person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor prescribed in a written law.”
He submitted that a repealed statute is no longer a written law and therefore any charge predicated on it is a constitutional nullity.
Further, under Section 1(3) of the Constitution:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
Thus, even a hypothetical saving clause cannot resuscitate a repealed criminal statute, as it would be void for inconsistency with Section 36(12).
5. Argument III — Judicial Precedent and Constitutional Supremacy
Kanu referenced Utah v. State (2016) LPELR-40077(SC) and Abacha v. State (2002) 11 NWLR (Pt. 779) 437 at 495-496, both of which reaffirmed that:
“Once the statute creating an offence is repealed, the jurisdiction of the trial court ceases immediately.”
“A court of law cannot breathe life into a statute that has ceased to exist.”
He argued that by proceeding under a repealed statute, the Court would effectively be enforcing a non-existent law, contrary to both constitutional and judicial authority.
6. Argument IV — Disobedience to the Supreme Court’s Directive
Kanu drew attention to the binding directive of the Supreme Court in its judgment on 15 December 2023 in FRN v. Kanu, where it held that the only potentially triable allegation (formerly Count 15) fell under the Customs and Excise Management Act (CEMA), not the repealed terrorism provisions.
He accused the trial court of refusing to realign the charge under CEMA as directed, thereby violating stare decisis and judicial hierarchy.
“A trial court cannot pick and choose which portions of a Supreme Court judgment to obey,” he declared.
7. Argument V — The Supreme Court’s Own Error and Ongoing Correction
Mazi Kanu pointed out that even the Supreme Court itself may have erred per incuriam when it described the repealed TPAA 2013 as “extant” in its 2023 judgment. By then, TPAA 2013 had been repealed by TPPA 2022.
He revealed that he has taken legal steps to bring this error to the Supreme Court’s awareness, hence refrained from elaborating further in open court.
8. Argument VI — Cross-Border Jurisdiction and Double Criminality
Citing Section 76(1)(d)(iii) of the Terrorism (Prevention and Prohibition) Act 2022, Kanu argued that for any alleged conduct committed outside Nigeria (in this case, Kenya), jurisdiction can only arise upon proof that the conduct constitutes an offence under the law of that foreign country—a double criminality requirement.
He said the prosecution failed to produce any evidence from Kenya showing such criminalisation, rendering the jurisdictional gateway shut.
9. Argument VII — Unlawful Detention
Kanu invoked Section 35 of the Constitution, which guarantees personal liberty, stressing that detention without a valid, subsisting charge amounts to executive detention, not judicial detention.
He condemned such practice and asserted that his continued detention violates the African Charter domesticated in Nigeria.
10. Allegation of Bias and Perception of Partiality
Kanu expressed deep concern that the Court’s repeated refusal to address jurisdiction and the apex court’s directive could create an appearance of bias:
“It creates the perception that this Court is not neutral; that it is more concerned with sustaining the prosecution’s narrative than upholding the law.”
He added, with evident restraint, that justice must not only be done but must be seen to be done.
Omotosho then asked Kanu, if he as a Judge has done something to make Kanu suspect his impartiality, Kanu said not yet.
11. Concluding Prayer
Mazi Kanu concluded that no valid, subsisting, or cognisable charge exists before the Court. And told Justice Omotosho that, "even if I don't enter any defence my lord, you cannot convict me because you can't convict someone without a written law as per the non-derogable s.36(12) of the Constitution of Nigeria. So my lord, our efforts here are wasted".
He urged Justice Omotosho to:
Hold that no valid charge exists under Section 36(12) of the Constitution;
Recognise that any trial on the repealed TPAA 2013 violates constitutional and Supreme Court authority;
Declare the proceedings a nullity for want of jurisdiction; and
Order his immediate release from custody.
He closed solemnly:
“It would be a deliberate deviation from the Constitution and a conscious embrace of illegality for a court of law to compel someone to enter defence without any charge. That is a weighty responsibility no judicial officer should carry.”
12. Judicial Response
Justice Omotosho listened attentively but declined to entertain further submissions on the constitutional objection at this stage.
He cautioned Kanu to keep his powder dry, indicating that the issues raised would be addressed at a more appropriate procedural point at the end. He decreed that Kanu must enter defence on the 7th of November or he would be foreclosed.
Cited Authorities (Summary List)
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 at 753
Utah v. State (2016) LPELR-40077(SC)
Abacha v. State (2002) 11 NWLR (Pt. 779) 437 at 495–496
FRN v. Kanu (SC/CR/1361/2022, 15 December 2023)
Sections 1(3), 35, 36(12), 122 Evidence Act, and 76(1)(d)(iii) TPPA 2022
*Prepared by: Onyedikachi Ifedi, Esq., in court for Mazi Nnamdi Kanu Global Defence Consortium
0 Comments