What judge told Nnamdi Kanu, lawyers before Friday’s adjournment
The Federal High Court in Abuja, on Friday, foreclosed Nnamdi Kanu’s defence and adjourned until 20 November for judgment in the alleged terrorism offences preferred against him by the federal government.
Justice James Omotosho fixed the date after Mr Kanu’s defence was foreclosed following his insistence that he would not enter his defence under what he said was a repealed law.
Mr Omotosho held that Mr Kanu, having exhausted the six days allocated to him by the court to conduct his defence, had waived his right to do so.
The judge said he would have extended the days allocated to Mr Kanu to conduct his defence if he had opted to open it.
He said Mr Kanu, having failed to utilise the opportunity given to him to conduct his defence, could not claim to have been denied the constitutionally guaranteed right to a fair hearing.
“This court has given opportunity to the defendant under Section 36 as required by the Constitution, and I will not allow this to continue.
“It is based on this, without hesitation, that I say that the defendant has waived his right,” Justice Omotosho said.
The judge, in the ruling, took time to review the history of the case and noted that Mr Kanu had always been represented by lawyers since the case began in his court on 29 March when the defendant took his plea.
He said that in an effort to expedite the case, the court granted an accelerated hearing.
The judge, however, observed that the defendant’s lawyers asked for an adjournment on several occasions during the days allocated to the prosecution to conduct its case.
According to him, the defendant’s lawyers sought adjournment on 29 April, 2 May, 8 May, 14 May and 21 May respectively.
The judge also observed that after Mr Kanu sacked his lawyers, he engaged four of them, including 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 proceeding, including on Friday.
Justice Omotosho held that, as was the case in the Bible, when God gave Adam the opportunity to explain why he ate the apple, the court equally gave Mr Kanu ample opportunity to enter his defence.
“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,” he said.
The judge held that, although the right to a 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 that the defendant could not be compelled to utilise the opportunity of a fair hearing, noting that he was free to waive it if he chose.
“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,” he said.
The judge said the two motions filed by the defendant, in which he was 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 were deemed to have waived their rights to file final written addresses on the grounds that while Mr Kanu is not a lawyer and the prosecution was represented by lawyers, the latter (the prosecution) would have an advantage over the defendant.
The judge then adjourned till 20 November for judgment.
Earlier, when the case was called on Friday, the judge asked Mr Kanu to open his defence.
Mr 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 had 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 Mr Kanu to file the documents and depose to the attached affidavit.
When Mr Kanu completed the process of filing the fresh motion, the case was recalled, following which the defendant moved the motion, dated 6 November, but filed on 7 November.
Arguing the motion, Mr 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.
Mr Kanu submitted that the Terrorism (Prevention) (Amendment) Act, 2013 and the Customs and Excise Management Act, Cap C45 LFN 2004, on which the charge was hinged, had been repealed.
He further argued that the failure of the court to take judicial notice that the laws had been repealed rendered the proceedings so far conducted in the case a nullity.
Mr Kanu claimed that his trial was a conspiracy and had been pre-determined, accusing the UK government of wanting him to be convicted and jailed.
He alleged that he learnt of the British authorities’ intention regarding his fate about one and a half years ago.
But Justice Omotosho said he was unaware of Mr Kanu’s claim.
“You said the British said this over one year ago?
“I know I was not the judge then. Because you said your case is pre-determined, I want to say this that I do not have any relationship with the British authorities,” the judge said.
When the judge asked Mr Kanu if he was now ready to open his defence, he responded thus: “I am ready, my lord, but I need to know under which law I am being tried.”
Mr Kanu then urged the court to strike out the charge and proceed to order his release.
When he concluded his submission, Mr Kanu commended the judge for being fair in his handling of the case, saying: “I am most grateful that you are guiding this proceeding the way it should.”
Responding to the motion, the prosecuting lawyer, Adegboyega Awomolo, said he had no need to file a counter affidavit to Mr Kanu’s motion, but would rely on the exhibit attached to the motion Kanu just moved.
The exhibit was part of the court’s proceedings, showing when Mr 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 Mr Kanu’s motion, the IPOB leader asked the court to, among others, expunge that section from its record of proceedings, claiming that he was misled into pleading to the count.
Mr Awomolo, therefore, 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 Mr 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 had always been Mr Kanu’s position that the charge for which he was standing trial was based on laws that had been repealed.
Mr Awomolo urged the court to take Mr Kanu’s motion as his (the defendant’s) defence in the case.
The News Agency of Nigeria (NAN) observes that Mr Kanu, in the motion, prayed the court for five reliefs.
These include, “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.”
Mr 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 unamended despite 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.
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“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.”
(NAN)