A Federal High Court in Abuja has foreclosed the detained leader of the proscribed separatist group, the Indigenous People of Biafra (IPOB), Nnamdi Kanu and scheduled judgment for November 20 in his terrorism trial.
Justice James Omotosho took the decision on Friday while ruling after Kanu failed to open his defence having exhausted the six days allocated to him by the court to conduct his defence.
The judge said he would have extended the days allocated to Kanu to conduct his defence if he had opened at all.
He said Kanu, having failed to utilise the opportunity granted him to conduct his defence, Kanu could not claim to have been denied the constitutionally guaranteed right to fair hearing.
In the ruling, the judge took time to review the history of the case and noted among others, that Kanu was always represented by lawyers since the case began in his court on March 29 when the defendant took his plea.
The judge noted that the defendant’s lawyers asked for adjournment on several occasions during the days allocated to the prosecution to conduct its case.
The judge also noted that after Kanu sacked his lawyers, he engaged four of them – P. A. N Ejiofor, Aloy Ejimakor, Maxwell Opara and Mandela Umegburu – as his consultants in relation to the case.
He observed that the said consultants were also always present in court during every proceedings, including on Friday.
Justice Omotosho held that as it was the case in the Bible, when God gave Adams the opportunity to explain why he ate the apple, the court equally gave Kanu ample opportunity to enter his defence.
He said: “I have, as a Christian, given the defendant the opportunity to defend himself. I have on some occasions appealed to him in the name of God and advised him to get the service of a lawyer knowledgeable in criminal procedure.”
The judge held that, although the right to fair hearing is constitutional, the defendant could not complain of being denied the right since he, on his own volition, failed to utilise the opportunity given him to defend himself.
Justice Omotosho also held the defendant could not be compelled to utilise the opportunity for fair hearing, noting that he was free to waive it if he choses.
He added: “The defendant has been given ample opportunity to defend himself in this case. I hold that the defendant has waived his right to open his defence.”
The judge said the two motions filed by the defendant, in which he is challenging the court’s jurisdiction, would be determined at the time of the final judgment.
He said in the interest of justice the prosecution and defendants are deemed to have waived their rights to file final written addresses on the grounds that while the defendant is not a lawyer, but the prosecution is represented by lawyers, the prosecution would have an advantage over the defendant.
The judge then adjourned till November 20 for judgment.
At the mention of the case on Friday, the judge called in Kanu to open his defence.
Kanu, who was sitting in the dock, rose to his feet and told the court that he could not proceed with the business of the day because he has been unable to file a fresh motion, with accompanying documents.
The judge then stood down the case for some minutes and invited officials of the court’s Registry to the courtroom to enable Kanu file the documents.
When Kanu completed the process of filling the fresh motion, the case was recalled, following which the defendant moved the motion, dated November 6, but filed on November 7.
In arguing the motion, Kanu queried the jurisdiction of the court to try him based on the charge, which he claimed was invalid on the grounds that it was based on repealed laws.
Kanu argued that the Terrorism (Prevention) (Amendment) Act, 2013 and the Customs and Excise Management Act, Cap C45 LFN 2004 on which the charge is hinged, have been repealed.
He further argued that the failure of the court to take judicial notice that the laws have been repealed rendered the proceedings so far conducted in the case a nullity.
Kanu claimed that his trial was a conspiracy and accused the British authorities wanting him to be convicted and jailed.
He said he learnt of the British authorities’s intention about his fate some one and half years ago, a claim Justice Omotosho said he was unaware of.
Kanu then, urged the court to strike the charge and proceeded to order his release.
When he concluded his submission, Kanu commended the judge for being fair in his handling of the case, adding: “I am most grateful that you are guiding this proceeding the way it should.”
Responding to the motion, the prosecuting lawyer, Adegboyega Awomolo (SAN) said he has no need to file a counter affidavit, but would rely on the exhibit attached to the motion Kanu just moved.
The exhibit was part of the court’s of proceedings, showing when Kanu’s plea was taken, during which he initially claimed not to understand count one of the seven-count charge on which he is being tried, but later admitted understanding the count when it was read to him the second time and proceeded to plead not guilty to the count.
In the motion, Kanu is praying the court to among others, expunged that section from its record of proceedings, claiming that he was misled into pleading to the count.
Awomolo urged the court to take judicial notice of the total record of its proceedings from the beginning of the case.
He also urged the court to note that Kanu was represented by lawyers, who cross examined the prosecution’s witnesses and challenged some of the evidence tendered by the prosecution.
The prosecuting lawyer said it has always been Kanu’s position that the charge for which he is standing trial, is based on laws that have been repealed.
Awomolo opposed Kanu’s motion and urged the court to take the motion as his (the defendant’s) defence in the case.
Kanu is praying the court for five reliefs in the motion he moved on Friday.
They are:
*An order expunging, from the records of the court, the purported plea of “not guilty” entered by the defendant/applicant on 29th March 2025, the same having been obtained under deception, coercion, and in clear violation of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and in defiance of the Supreme Court’s binding directive in FRN v. Nnamdi Kanu (SC/CR/1361/2022).
*An order setting aside all proceedings conducted pursuant to the said defective plea, including, but not limited to the scheduling of defence, witness summons, and trial dates, the same being founded on a nullity ab initio.
*An order declaring that the seven-count charge dated 29th March 2025 discloses no triable offence known to law, having been founded on repealed statutes—namely, the Terrorism (Prevention) (Amendment) Act, 2013 (repealed by the Terrorism (Prevention and Prohibition) Act, 2022) and the Customs and Excise Management Act, Cap C45 LFN 2004 (repealed by the Nigeria Customs Service Act, 2023)—and in flagrant disobedience of the Supreme Court’s order for amendment.
*An order striking out the charge in its entirety for want of jurisdiction, the same being incompetent and void ab initio.
*An order directing the immediate release of the defendant/applicant from custody, there being no valid charge pending before this court.
Kanu hinged his five prayers on nine grounds to include that “on 29th March 2025, upon being asked by the Registrar whether he understood count one of the charge, the defendant unequivocally responded ‘I don’t’ – a fact indelibly recorded at page 12 of the Certified True Copy of the record of proceedings.
“Despite the defendant’s clear protestation of non-comprehension, the court failed to halt proceedings, offer explanation, or ensure understanding in a language the Defendant comprehends, thereby breaching Section 36(6)(a) CFRN.
“The subsequent ‘I do, yes’ and plea of ‘not guilty’ were procured under pressure and without curing the initial constitutional defect, rendering the entire plea-taking exercise a nullity.
“The charge is founded on repealed statutes – statutorily noticeable under Section 122 of the Evidence Act, 2011—and remains unamendeddespite the Supreme Court’s explicit directive on 15th December 2023 that count 15 (formerly mis-citing the Criminal Code) be amended to reflect the Customs and Excise Management Act (CEMA).
“By Section 36(12) CFRN, no person shall be convicted of an offence not defined in a written law in force at the time of commission. The prosecution’s reliance on repealed laws violates this constitutional safeguard.
“The prosecution’s continued use of the unamended, defective charge constitutes a gross abuse of court process and contempt of the Supreme Court’s binding judgment under Section 287(1) CFRN.
“Sections 220 and 221 of the Administration of Criminal Justice Act (ACJA), read with Section 165 of the Evidence Act, compel the setting aside of proceedings founded on a materially defective plea, especially where the accused was misled and prejudiced.
“This court lacks jurisdiction to proceed on a charge that discloses no offence known to law. Jurisdiction is the lifeblood of adjudication; without it, all proceedings are void ab initio.
“The defendant has been in custody since June 2021 without a valid charge – a continuing violation of his fundamental rights under Sections 35 and 36 CFRN.”
