Nnamdi Kanu files ‘arrest judgment motion,’ * Releases dossier of his arguments in preliminary objection

Nnamdi Kanu files ‘arrest judgment motion,’

* Releases dossier of his arguments in preliminary objection

By Steve Oko

Detained leader of the Indigenous People of Biafra, IPoB, Mazi Nnamdi Kanu, Monday, filed arrest judgment motion before an Abuja Federal High Court, seeking an order of the court to compel Justice James Omotosho handling his trial, to grant him fair hearing first before delivering judgment on his matter.

Kanu in the motion , also urged the court to compel the trial Judge to also allow him submit his final written arguments.

Below is a full text of the motion and also his notice of preliminary objection made available to Wawa News Global through his Special Counsel, Chief Aloy Ejimakor.

 “THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVIVSION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CR/383/2015

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA  —-  COMPLAINANT/RESPONDENT

AND

MAZI NNAMDI KANU    —- DEFENDANT/APPLICANT

NOTICE OF PRELIMINARY OBJECTION TO JURISDICTION BROUGHT PURSUANT TO:

I. Sections 1(1)–(3), 35, 36(1)–(12), 42, 45, and 46(1)–(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended);

II. Articles 5, 6, 7 and 26 of the African Charter on Human and Peoples’ Rights (Cap A9 LFN 2004);

III. Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR);

IV. Sections 6(6)(b) and 251(1)(q) of the Constitution (vesting jurisdiction); and

V. Under the inherent jurisdiction of this Honourable Court.

TAKE NOTICE that this Honorable Court will be moved on the ______day of _______2025 at the hour of 9 0’clock in the forenoon or soon thereafter as counsel will be heard on behalf of the Defendant/Applicant (hereafter: Defendant) praying this Honorable Court for the following Reliefs:

A Declaration that the continued prosecution of the Defendant under the repealed Terrorism (Prevention) Amendment Act 2013, and upon a proscription order obtained ex parte and without fair hearing, violates Sections 1(3), 36(1)–(12), and 42 of the Constitution and Articles 7 and 26 of the African Charter, and is therefore null and void.

A Declaration that the Federal High Court’s ex parte order proscribing IPOB, obtained without notice or hearing and while Justice Binta Nyako’s subsisting ruling (that “IPOB is not an unlawful society”) remained in force, is unconstitutional, unlawful, and cannot ground criminal liability.

An Order striking out or permanently staying Counts 1–8 (save Count 15) of the Amended Charge dated 14 January 2022 for being barred by double jeopardy, having the same factual ingredients as Counts 6–14 earlier struck out by the Federal High Court on 8 April 2022.

An Order declaring that the Defendant’s extraordinary rendition from Kenyawithout extradition proceedings or due process violated Section 36(1) & (9) of the Constitution, the Extradition Act (Cap E25 LFN 2004), and Articles 12 and 13 of the African Charter, thereby robbing this Honourable Court of jurisdiction.

An Order nullifying all proceedings conducted in breach of the Defendant’s right to adequate facilities for defence, confidential communication with counsel, and fair hearing—particularly the eavesdropping, seizure of legal materials, and denial of unmonitored access.

And for such further order(s) as this Honorable court may deem fit to make in the circumstance.

AND FURTHER take Notice that at the hearing of this Preliminary Objection, the Defendant shall – in addition to the Affidavit, Exhibits and the Written Address filed hereof – rely on the following Grounds:

Ground 1 – Contempt and Jurisdictional Defect

The continued prosecution of the Defendant despite the binding Court of Appeal discharge of 13 October 2022 and eight-day post-judgment detention constitutes flagrant contempt of court. Under Ojukwu v. Military Governor of Lagos State(1986) 1 NWLR (Pt. 18) 621, a party in disobedience cannot seek the Court’s indulgence. A court cannot lawfully proceed in favour of a contemnor; jurisdiction is ousted.

Ground 2 – Void Charge under Repealed Statutes

All charges are framed under repealed laws, namely the Terrorism (Prevention) Amendment Act 2013 and the Customs and Excise Management Act, both extinguished by the Terrorism (Prevention and Prohibition) Act 2022 and the Customs and Excise Management (Repeal and Re-enactment) Act 2023. Under Section 98(3) TPPA 2022, Section 36(12) CFRN, and Section 122(2)(a) Evidence Act 2011, a repealed law cannot found criminal liability.

Ground 3 – Absence of Jurisdiction Following Extraordinary Rendition

The Defendant’s kidnap and transfer from Kenya without extradition process violated Sections 36(1), (8), and (9) CFRN, Section 76(1)(d)(ii)–(iii) TPPA 2022, and Articles 7, 12, and 13 of the African Charter. The Court of Appeal in FRN v. Kanu (CA/ABJ/CR/625/2022) held that such rendition deprives any Nigerian court of jurisdiction to try him. Jurisdiction cannot be conferred by illegality.

Ground 4 – Continuing Violations of Fair Hearing and International Comity

The denial of fair hearing in Kenya, the breach of international comity, and the failure to restore the Defendant to the status quo ante before re-arraignment render this prosecution unconstitutional. Section 36 is non-derogable; once violated, the trial collapses. See Garba v. University of Maiduguri(1986) 1 NWLR (Pt 18) 550; Abacha v. Fawehinmi (2000) 6 NWLR (Pt 660) 228.

Ground 5 – Denial of Adequate Facilities and Void Proscription

The State’s eavesdropping on counsel–client meetings and seizure of legal materials offend Section 36(6)(b)–(d) CFRN. The ex parte proscription of IPOB—procured in defiance of Justice Nyako’s subsisting order and pending appeal to the Supreme Court—is unconstitutional. A-G Lagos v. A-G Federation (2014) 9 NWLR (Pt 1412) 217 confirms that only express appellate reversal can alter a binding judgment.

Dated this______ day of ______________2025.

______________________________

MAZI NNAMDI KANU

Defendant/Applicant

DSS Detention Facility

Headquarters, Aso Drive

Abuja, Nigeria

FOR SERVICE ON:

THE COMPLAINANT/RESPONDENT

Thru Her Counsel:

Asiwaju Adegboyega Awomolo, SAN

Adegboyega Awomolo and Associates

Victoria Court, Plot 182

44 Crescent, CITEC Villas

Gwarinpa, ABUJA.

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVIVSION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CR/383/2015

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA  —-  COMPLAINANT/RESPONDENT

AND

MAZI NNAMDI KANU    —- DEFENDANT/APPLICANT

AFFIDAVIT IN SUPPORT OF PRELIMINARY OBJECTION TO JURISDICTION

I, MAZI NNAMDI KANU, Male, Adult, British Citizen and Nigerian, currently detained at the Headquarters of the Department of State Services, Abuja, DO SOLEMNLY SWEAR AND STATE AS FOLLOWS, That:

1. I am the Defendant/Applicant in this Motion and I depose to this affidavit based on my personal knowledge, except where it is otherwise stated.

2, I was first arrested in Lagos on 14th October 2015 by officers of DSS led by one Temisan John; and I was subsequently first arraigned on 23rd November 2015 before the Abuja Chief Magistrate Court for charges of criminal conspiracy, intimidation and membership/leadership of an illegal organization (IPOB), etc, whereupon I was granted bail but the bail order was not obeyed.

3, On 16th December 2015, I was DISCHARGED by the Abuja Magistrate Court pursuant to an application brought by the DSS on grounds that the Magistrate court lacked jurisdiction to try the charges.

4, On November 11, 2015, Justice Adeniyi Ademola of Federal High Court Abuja granted an application brought under Section 27(1) of the Terrorism Prevention (Amendment) Act 2013 by the DSS for my pre-trial detention, whereby my detention continued.

5, On December 17, 2015, same Justice Ademola ordered the DSS to RELEASE me forthwith and unconditionally since no charge was pending against me at the time of the order. Justice Ademola was later arrested and detained by the DSS because of this order of release.

6, While steps were being taken to free me from detention pursuant to Justice Ademola’s order of unconditional release, the DSS/AGF filed a new six-count charges against me and two others before the Federal High Court, Abuja. The charges bordered on criminal conspiracy, treason, illegal importation of radio transmitter and possession of firearms, defamation of late President Buhariand membership of an unlawful/illegal organization (IPOB). There was no charges bordering on incitement of terrorism.

7, On 23rd December 2015, I was arraigned for the first time before a Federal High Court presided over by Justice Mohammad in Abuja. The Judge was later recused from the case.

8, On September 26, 2016, I appeared before another judge of the Federal High Court (Justice John Tsoho), who later transferred the case to Justice Binta Murtala-Nyako.

9, On March 1, 2017, pursuant to my motion, Justice Nyako partially upheld my preliminary objection and struck out some of the counts including the one relating to membership/management of an unlawful/illegal organization or proscribed organization (i.e IPOB). See Exhibit MNK 1.

10, On April 25, 2017, Justice Nyako granted me BAIL and I was released same month; the case was then set for trial on 20th October 2017, whereupon I travelled to my hometown of Afaraukwu Ibeku, Abia State and awaited my next trial date.

11, Between 10th and 17th September 2017, the Nigerian Army (aided by other security agencies, including the DSS) launched military operations against me and my family at my ancestral (royal) home in the said Afaraukwu Ibeku, Abia State, which directly caused me to flee Nigeria, and thus ultimately missed my next trial date set for October 2017. My parents (who were at home during the attack) sustained severe injuries from the military attack and died few days apart from the complications of their injuries. 28 persons (mostly young people) were killed and many others taken into custody and detained to this day at Wawa barracks in Niger State and other disparate military/DSS locations in Nigeria.

12, In January 2022, the High Court of Abia declared the said September 2017 military assault as violation of my fundamental rights and awarded me ONE BILLION NAIRA and ordered the Complainant to apologize to me. The court also called on the Federal Government to pursue the path of “amicable settlement” of the charges standing against me. See Exhibit MNK 2.

13, On September 20, 2017, the Federal Government succeeded on an ex parte application that proscribed the IPOB and declared it a terrorist group. The application was filed the same day (20th September 2017). The IPOB appealed the proscription and following the decision of the Court of Appeal upholding it, the IPOB proceeded on appeal to the Supreme Court, has now settled the Brief and has equally filed an application for injunction pending appeal. The processes are currently pending before the Supreme Court. To date, the Respondent in the appeal (Complainant and its confederate) has neither filed its Brief, nor countered the application for injunction pending appeal. To be sure, SIX of the 7-count charges levied against me are predicated on the said ex parte order that remains non-final, as it is currently pending the determination of the Supreme Court.

14, On 18th March 2018, the African Union, through its human rights tribunal (the African Commission on Human and Peoples Rights), in an Interim Decision, declared the proscription of IPOB, and my arrest and prosecution as violations of the African Charter on Human and Peoples Rights, which Nigeria ratified in 1983. Consequently, the Commission issued a “cease and desist” Directive to late President Buhari to halt any further arrests and prosecutions in order “to prevent irreparable injury” to myself and the IPOB. See Exhibit MNK 3.

15, On 1st October 2020, the “United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; …”, declared the proscription of IPOB/the terrorist tag and my arrest/prosecution as violations of international human rights laws and an act of discrimination against the Igbo ethnic group. See Exhibit MNK 4.

16, In October 2022, the High Court of Enugu State declared as unconstitutional the executive and administrative steps taken by the Federal Government to proscribe IPOB and awarded EIGHT BILLION Naira against the the Complainant. This judgment is subsisting and not appealed. See Exhibit MNK 5.

17, In November 2018 (so soon after I managed to make my way to Israel), I took prompt steps to execute a detailed deposition personally sworn to by me, in which I fully disclosed my location. In the Affidavit, I copiously averred to the life-and-death reasons (bordering on the said military assault and the Complainant’s unrelenting hot pursuit of my person) which all together had compelled me to flee for my safety and self-preservation and I undertook to return to Nigeria and appear for my trial if my safety from the Complainant could be guaranteed; yet this Affidavit was never considered by the former trial Judge before she revoked my bail.

18, In the course of my exile abroad, I travelled to the Republic of Kenya several times solely on my British Passport, and on 12th May 2021, I entered Kenya as a bonafide British citizen and was legally admitted as such on my British passport. I carried no Nigerian passport. After my admission, I settled-in at a temporary location in Nairobi, Kenya.

19, On June 19 2021, I drove himself to Jomo Kenyatta International Airport, Nairobi, Kenya on a personal errand. And as soon as I pulled to a stop at the parking lot of the airport and alighted from my vehicle, several armed men (later determined to be agents of the Complainant) violently accosted and abducted me, handcuffed me, blindfolded me, bundled me in a vehicle and sped away.

20, My abductors took me to a nondescript private house (not a police station or other official location) somewhere in Nairobi, Kenya and chained me to the floor. Throughout this ordeal, I was not shown any Kenyan arrest warrant or extradition warrant, nor was I informed of the existence of any such warrant.

21, While chained to the floor, my abductors took turns beating me and torturing me to the point that I fainted several times and was intermittently revived when my abductors poured cold water on me.

22, I remained chained to the floor for eight (8) days and was not allowed to bathe and was fed only on bland bread once a day and given non-sanitary water to drink.

23, My entreaties to my abductors to avail me medications for my hypertension were flatly refused; they also refused to present me before a Kenyan Court or a Kenyan police station or other official law enforcement facility and I was also not allowed a phone call to a lawyer, my relatives and doctor.

24, On the eight day (27th June 2021), my abductors brought me out of the house, bundled me into a waiting  car, drove me straight to the tarmac of Jomo Kenyatta International Airport, where they evaded Kenyan immigration and forcibly bundled me into a private jet that departed the airport at about 12 noon on June 27, 2021 and arrived Abuja, Nigeria in the evening of same day. Throughout the flight, I was handcuffed to the iron rail of the aircraft seat which caused me significant wrist bruise. My legs were also manacled in a very painful and excruciating manner.

25, On arrival in Nigeria, I was taken to and detained at the headquarters of the National Intelligence Agency (NIA) in Abuja, where I spent the first night, sleeping on the floor with very bright electric bulbs deliberately left on throughout the night. Two days later, I was transferred to the DSS detention facility in Abuja and held in solitary confinement.

26, On 29th June 2021, I was presented (by the DSS) before Justice Binta Murtala-Nyako and without notice to my Counsel-of-record before the Court, the court conducted a hearing and remanded me to the custody of the DSS, pursuant to DSS’s application. The Complainant’s Counsel was present in Court and he addressed the Court, urging my non-prison remand.

27, Between June 2021 and January 2022 (post-rendition) the Complainant amended the Charges several times and in the process dropped ALL the pre-rendition Charges but the one that bordered on importation of radio transmitter. All the fourteen new charges (or post-rendition charges) bordered on membership of IPOB and incitement of terrorism and were brought under the Terrorism Prevention (Amendment) Act (TPAA) of 2013 that was still extant at the time.

28, On August 26, 2021, the “United Nations Special Rapporteur on Torture and other Cruel, inhuman Treatment …” declared my abduction, disappearance, torture (in Kenya) and my subsequent extraordinary rendition to Nigeria as violative of all pertinent international laws. See Exhibit MNK 6.

29, In July 2022, the “United Nations Human Rights Council”, in an Opinion, declared my forcible return to Nigeria (and absence of extradition proceedings in Kenya) as an “act of extraordinary rendition” and directed that I be unconditionally released and compensated. See Exhibit MNK 7.

30, In October 2022, the Federal HighCourt, declared as unconstitutional my “arrest” and continued detention in Abuja; and awarded FIVE HUNDRED MILLION Naira to me and against Complainant. See Exhibit MNK 8.

31, On 8th April 2022, the Federal High Court (coram: Justice Binta Murtala-Nyako) struck out eight of the 15-count charges and set down 7 counts for trial, whereupon I appealed to the Court of Appeal against the remaining charges.

32, On 13th October 2022, the Court of Appeal, in a landmark judgment, allowed my appeal, held that the Federal High Court lacked jurisdiction to try me due to the Complainant’s “reckless and grotesque” violation of my fair hearing rights (of extradition) and the resort to extraordinary rendition, and consequently DISCHARGED me from all charges, yet the Complainant refused to release me from detention, justifying it on a stay of execution it obtained EIGHT days later from the same Court of Appeal.

33, Prior to my discharge by the Court of Appeal, the TPAA 2013 under which I was charged (and still charged) had already been repealed by the Terrorism Prevention and Prohibition Act, 2022 (TPPA), which came into force in July 2022.

34, The Complainant appealed the Court of Appeal’s discharge to the Supreme Court and on 15th December 2023, the Supreme Court set aside the Court of Appeal’s judgment on jurisdictional grounds but affirmed the act of rendition as illegal and “criminal”. It then remitted the case to this Honourable Court for trial. See Exhibit MNK 9.

35, Following the recusal of Justice Binta Murtala-Nyako from the case, my trial commenced de novobefore this Honorable Court in March 2025 on the repealed TPAA 2013. Count 7 of the charge which borders on the radio transmitter is alleged to have occurred in Anambra State and brought under the Customs and Excise Management Act (CEMA) which was repealed in May 2022.

36, On 24th June 2025, the High Court of Kenya held that that my abduction, detention, disappearance, torture and unlawful expulsion (extraordinary rendition) from Kenya to Nigeria is UNCONSTITUTIONAL; and it awarded me damages in the amount of TEN MILLION KENYAN SHILLINGS (approximately ONE HUNDRED AND TWELVE MILLION NAIRA). See Exhibit MNK 10.

37, On 26th September 2025, this Honorable Court rejected my no-case submission and ordered a trial.

38, It is in the interest of justice, especially as it does not prejudice the Complainant, that this Honorable Court should first determine its jurisdiction before subjecting me to the rigors of trial for capital offenses.

39, That I make this oath consciously, conscientiously and in good faith, believing its contents to  be true and accurate to the best of my knowledge and in accordance with the oath Act in force.

__________________

Deponent

Sworn to at the Registry of the Federal High

Court, Abuja, this _________ day of _____________, 2025

BEFORE ME

__________________________

COMMISSIONER FOR OATHS

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVIVSION

HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CR/383/2015

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA  —-  COMPLAINANT/RESPONDENT

AND

MAZI NNAMDI KANU    —- DEFENDANT/APPLICANT

WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION TO JURISDICTION

1.0. INTRODUCTION:

1.1. This Written Address is in support of the Defendant/Applicant’s Notice of Preliminary Objection seeking the following reliefs:

A Declaration that the continued prosecution of the Defendant under the repealed Terrorism (Prevention) Amendment Act 2013, and upon a proscription order obtained ex parte and without fair hearing, violates Sections 1(3), 36(1)–(12), and 42 of the Constitution and Articles 7 and 26 of the African Charter, and is therefore null and void.

A Declaration that the Federal High Court’s ex parte order proscribing IPOB, obtained without notice or hearing and while Justice Binta Nyako’s subsisting ruling (that “IPOB is not an unlawful society”) remained in force, is unconstitutional, unlawful, and cannot ground criminal liability.

An Order striking out or permanently staying Counts 1–8 (save Count 15) of the Amended Charge dated 14 January 2022 for being barred by double jeopardy, having the same factual ingredients as Counts 6–14 earlier struck out by the Federal High Court on 8 April 2022.

An Order declaring that the Defendant’s extraordinary rendition from Kenyawithout extradition proceedings or due process violated Section 36(1) & (9) of the Constitution, the Extradition Act (Cap E25 LFN 2004), and Articles 12 and 13 of the African Charter, thereby robbing this Honourable Court of jurisdiction.

An Order nullifying all proceedings conducted in breach of the Defendant’s right to adequate facilities for defence, confidential communication with counsel, and fair hearing—particularly the eavesdropping, seizure of legal materials, and denial of unmonitored access.

And for such further order(s) as this Honorable court may deem fit to make in the circumstance.

1.2. The application is supported by a Thirty-nine (39)-paragraph Affidavit and ten (10) Exhibits. The Applicant relies on all the paragraphs of the affidavit and the attached Exhibits; and wherever applicable, on the record of this Honorable Court in urging this Honourable Court to grant the application as sought.

2.0 BRIEF STATEMENT OF FACTS

2.1 The facts pertaining to this application are as set out in the Affidavit in support of this application, which is hereby adopted and relied upon in this Written Address as if fully re-written herein; and in addition thereto and in particular thereof, the Defendant/Applicant relies on the following facts:

The Defendant/Applicant, Mazi Nnamdi Kanu, is standing trial before this Honourable Court on an Amended 15-Count Charge dated 14 January 2022, laid under the repealed Terrorism (Prevention) Amendment Act 2013.

On 13 October 2022, the Court of Appeal, Abuja Division (per Justices Oludotun Adefope-Okojie, Hanatu Sankey, and Ebeowei Tobi JJ.CA), discharged the Defendant of all charges and prohibited further trial or detention. Despite that binding appellate discharge, the State detained the Defendant for eight further days before filing a belated motion for stay on 21 October 2022, thus entering into continuing contempt of court.

On 8 April 2022, prior to the appellate discharge, the trial court (coram: Binta Murtala-Nyako J.) had struck out Counts 6 – 14 for disclosing no offence known to law, and held expressly that “there is no evidence before the court that IPOB is an unlawful society.”

Instead of adducing such evidence properly on appeal, the Attorney-General of the Federationobtained an ex parte proscription order before another division of the Federal High Court, declaring IPOB a terrorist organisation—an act of forum shopping that violated Section 36(1) of the Constitution and Articles 7 and 26 of the African Charter.

The Defendant was extraordinarily rendered from Kenya to Nigeria in June 2021 without extradition proceedings, contrary to the Extradition Act, the Kenyan Constitution, and international law. The Kenyan High Court, the UN Working Group on Arbitrary Detention (Opinion No. 25/2022), and the UN Special Rapporteur (2023) all found the rendition illegal.

While in DSS custody, the Defendant’s consultations with counsel are monitored and recorded; his legal documents confiscated; and he is denied private, unmonitored access, contrary to Section 36(6)(b)–(d)CFRN and Article 7(1)(c) of the African Charter.

The prosecution continues to rely on repealed laws, duplicated counts, and a proscription order under appellate challenge, thereby perpetuating a prosecution inconsistent with the supremacy of the Constitution, the doctrine of finality, and the Defendant’s fundamental rights.

3.0 ISSUES FOR DETERMINATION

3.1  The Applicant formulates the following issues for determination:

Whether a prosecution may lawfully continue when the State is in continuing contempt of a binding appellate discharge order—evidenced by an eight-day illegal detention preceding a belated “stay.”

Whether this Honourable Court possesses jurisdiction to entertain or sustain any charge against the Defendant/Applicant under a repealed statute—particularly the Terrorism (Prevention Amendment) Act 2013 and the Customs and Excise Management Act (CEMA)—having regard to Section 98(3) of the Terrorism (Prevention and Prohibition) Act 2022, Section 122(2)(a) of the Evidence Act 2011, and the constitutional prohibition under Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Whether, in view of the extraordinary rendition of the Defendant/Applicant from Kenya without extradition proceedings or compliance with the jurisdictional thresholds in Section 76(1)(d)(ii)–(iii) of the Terrorism (Prevention and Prohibition) Act 2022, this Honourable Court can lawfully assume jurisdiction to try or continue any charge against him, having regard to Sections 36(1), (8), and (9) of the Constitution, the African Charter on Human and Peoples’ Rights, and the binding pronouncement of the Court of Appeal in FRN v. Kanu (CA/ABJ/CR/625/2022).

Whether the denial of fair hearing in Kenya, the breach of international comity, and continuing violations of Section 36 of the Constitution, the African Charter, and binding judicial pronouncements have vitiated the entire proceedings, rendering further trial unconstitutional and void.

Whether the persistent denial of adequate facilities for defence, the eavesdropping on confidential attorney–client communications, and the State’s interference with the Defendant’s preparations for trial constitute a continuing violation of Section 36(6)(b)–(d) of the Constitution and Article 7(1)(c) of the African Charter, thereby vitiating these proceedings.

Whether the continued prosecution of the Defendant on Counts 1, 2, 3, 4, 5, and 8—arising from the same factual matrix as Counts 6, 7, 9, 10, 11, 12, 13, and 14 earlier struck out by Hon. Justice Binta Nyako—violates the constitutional bar against double jeopardy under Section 36(9) of the 1999 Constitution and the “same-ingredients” test recognised by Nigerian and international law.

Whether the purported proscription of the Indigenous People of Biafra (IPOB) obtained ex parte under the Terrorism Prevention (Amendment) Act 2013, in disregard of Section 36 of the Constitution, the African Charter, and the ICCPR, can ground a valid conviction or form a lawful basis for continued prosecution while the legality of that proscription remains sub judice before the Supreme Court.

4.0. ARGUMENT ON THE ISSUES:

ISSUE 1: Whether a prosecution may lawfully continue when the State is in continuing contempt of a binding appellate discharge order—evidenced by an eight-day illegal detention preceding a belated “stay.”

My Lord, this preliminary objection strikes at the very root of jurisdiction. It is trite that obedience to subsisting court orders is the lifeblood of adjudication, without which the temple of justice becomes an arena of impunity. As Karibi-Whyte J.S.C. observed in Odogwu v. Odogwu(1992) 2 NWLR (Pt. 225) 539 at [561 paras. E–F], “Court orders must be obeyed until set aside; to do otherwise is to invite anarchy and render the judicial process nugatory.” See alsoMilitary Governor of Lagos State v. Ojukwu(1986) 1 NWLR (Pt. 18) 621 at [636–637 paras. D–F].

In the hierarchy of judicial obligations, no litigant—least of all the State—may appear before the court as both violator and petitioner. The settled principle is that a party in contempt cannot be granted audience until the contempt is purged. The Supreme Court in Ojukwu (supra) at [637 paras. E–F] put it with timeless clarity: “No legal system can condone a deliberate disobedience to court orders; the rule of law presupposes that the State itself is subject to the law.”

The equitable maxim of clean hands — “he who comes to equity must come with clean hands” — reinforces this principle. A party who seeks the discretionary relief of the court must do so with conduct unstained by illegality or bad faith. In Ariori v. Elemo (1983) 1 SCNLR 1 at [10 paras. C–D], the apex court reaffirmed that “Equity aids the vigilant, not the indolent,” meaning that the violator of a lawful order cannot demand equity’s aid. See also Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506 at [535 para. B]. Applied here, the Respondent’s refusal to release the Applicant after the binding appellate discharge, while simultaneously seeking a stay and continuation of proceedings, violates this maxim. To grant such a party audience would reward contempt, subvert justice, and erode the rule that “he who seeks equity must do equity.”

Instructively, this Honourable Court is bound to take cognisance of its own authority and of appellate mandates that control the subject matter. Madukolu v. Nkemdilim (1962) 1 All NLR 587 at [595 paras. E–G] teaches that a court is competent only where (a) it is properly constituted, (b) the subject matter is within jurisdiction, and (c) “the case comes before it initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” Failure to comply with subsisting orders of a superior court extinguishes that competence. See also A.G. Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187 at [223 paras. F–G].

On 13 October 2022, the Court of Appeal (Oladotun Adefope-Okojie, JCA; Hanatu Sankey and Ebeowei Tobi, JJCA, concurring) discharged and ordered the release of the Applicant, holding unequivocally that by reason of his extraordinary rendition, “the lower Court or indeed any Court in this country is divested of jurisdiction to entertain charges against [Mr Kanu].” (CA/ABJ/CR/625/2022 at pp. 3–4, lines 64–90). See also Ojukwu (supra) at [637 paras. E–F] on immediate obedience to appellate orders.

Notwithstanding that binding pronouncement, the Department of State Services (DSS) detained the Applicant for eight (8) full days(13–20 October 2022) without charge or warrant—an interregnum wholly devoid of lawful authority. Ojukwu condemns such posture in emphatic terms: “With the contempt of the Court of Appeal … subsisting, it would be inequitable to give consideration to the application of the applicants.” (ibid at [637 paras. E–F]). See also Governor of Lagos State v. Ojukwu (No. 2) (1986) 1 NWLR (Pt. 18) 621 at [638 paras. A–B].

On 21 October 2022, the prosecution belatedly procured a stay of execution from a panel led by Tsammani, JCA. That stay—secured eight days after the discharge—cannot retrospectively cleanse a contempt already crystallised. The Supreme Court was categorical that a litigant has “no right to take the matter into [his] own hands once the court was seised of it.” (Ojukwu, supra, at [637 para. F]). See also Ubah v. Court of Appeal (1987) 3 NWLR (Pt. 64) 226 at [244 paras. A–B].

5A. Arguendo, the Respondent may contend that its belated application for stay—eventually granted on 28 October 2022—operated retroactively to cure the contempt, relying on A-G Anambra v. Okeke(2002) 12 NWLR (Pt. 782) 575 at [599 paras. C–F], where the Supreme Court upheld a delayed stay in a civil proceeding. With respect, that reasoning is wholly inapplicable to the instant case. Okekeconcerned a civil dispute in which a stay merely preserved a subsisting judgment debt; it did not purport to resuscitate a proceeding already extinguished by operation of law.

5B. The distinction between civil and criminal jurisdiction is profound. In civil matters, a stay operates in personam, resting on equitable discretion; in criminal matters, a discharge or acquittal terminates jurisdiction ipso facto. Once a criminal court is divested of competence, there remains nothing upon which any interlocutory order—whether of stay or continuation—can lawfully attach. See alsoFRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 at [134 paras. D–E]:

“Once a conviction or trial is void, there is nothing upon which a stay can operate.”

5C. The Court of Appeal’s judgment of 13 October 2022 thus had immediate, self-executing finality. As at that date, the trial court became functus officio; its case file stood judicially extinguished. The purported stay secured fifteen days later could not breathe life into a corpse of jurisdiction. A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at [568 paras. A–C] reaffirms that “a party in contempt cannot enjoy the court’s indulgence,” while Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at [637 paras. E–F] condemns any attempt by the Executive to suspend obedience through procedural artifice.

5D. Moreover, the stay of 28 October 2022 was granted without a subsisting charge under a valid statute. By 12 May 2022, the Terrorism (Prevention and Prohibition) Act 2022 had repealed the 2011/2013 Act. Section 98(3) of the new Act permits only the continuation of existing proceedings, not the revival of defunct ones. Since no valid charge survived the discharge of 13 October 2022, there was no “proceeding” to be saved. See also Odungweru v. Iheanacho (2023) LPELR-59520 (CA) at [28 paras. D–F], where the Court of Appeal held that contempt and jurisdictional lapses occurring before an interlocutory intervention are incurable nullities.

5E. In equity, the doctrine of relation-back cannot validate a void act. The maxim ex nihilo nihil fit—nothing comes from nothing—applies with full rigour to judicial authority. The Supreme Court in Omoijahe v. Umoru (1999) 7 NWLR (Pt. 610) 178 at [198 paras. B–C] held that obedience to a subsisting order is a condition precedent to any further judicial indulgence. Consequently, the eight-day vacuum between 13 and 20 October 2022 constitutes an incurable jurisdictional chasm; neither equity nor procedural hindsight can fill it.

5F. This Honourable Court therefore cannot, consistent with the Constitution and precedent, treat the later stay as having retroactive effect. To do so would convert contempt into competence, negate Section 36(9) of the Constitution (which forbids double jeopardy after discharge), and offend the rule of law itself. The Supreme Court in A-G Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187 at [223 paras. F–G] admonished that “courts exist to ensure that the powers of government are exercised in accordance with the law.” Obedience cannot be suspended, much less back-dated.

The prosecution may argue that the later Supreme Court remittal excuses the non-release. With respect, obedience to a subsisting appellate order is immediate and self-executing unless expressly suspended by superior judicial act. The Court of Appeal itself affirmed that its judgment had “brought the criminal proceedings to an end.” (CA/ABJ/CR/625/2022 at pp. 3–4, lines 92–97). See also Ubah v. Court of Appeal (supra) at [244 paras. A–B].

Nor can a civil-procedure motion for stay substitute for the strict safeguards of criminal jurisprudence. The conflation is alien to the Administration of Criminal Justice Act 2015 and the constitutional presumption of liberty. The Supreme Court in Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 per Ogundare, JSC at [289 paras. B–C] held: “By Cap. 10 the African Charter is now part of the laws of Nigeria and like all other laws, the Courts must uphold it.” See also Abacha v. Fawehinmi (supra) at [290 para. D].

Jurisdictional competence also turns on obedience to subsisting orders. Madukolu v. Nkemdilim(1962) 1 All NLR 587 at [595 paras. E–G] teaches that a court is competent only when (a) it is properly constituted; (b) the subject matter is within its jurisdiction; and (c) the case comes before it upon fulfilment of any condition precedent. Proceedings conducted in defiance of a superior order lack both legal and moral foundation. See also A.G. Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187 at [223 paras. F–G].

The inescapable conclusion is that the Respondent, being in active contempt, is disentitled to the Court’s indulgence. Until it purges its contempt by obeying the 13 October 2022 discharge, every further step in prosecution is a desecration of the rule of law which, in Eso JSC’s immortal words, “would operate a sabotage of our cherished system of justice.” (Ojukwu, supra, at [637 paras. F–G]). See also A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at [38 para. H].

My Lord, from the foregoing authorities and the undisputed chronology between 13 and 21 October 2022, the Respondent’s conduct stands as a continuing affront to judicial authority and constitutional governance. The Court cannot lend its coercive powers to a party in deliberate disobedience of subsisting appellate orders. The majesty of the law demands that obedience must precede indulgence.

It is respectfully submitted that to proceed with the present charge without first compelling obedience to the discharge order of 13 October 2022 would erode the institutional integrity of this Honourable Court and make a mockery of the rule of law. The Supreme Court has consistently reminded that “courts exist to ensure that the powers of government are exercised in accordance with the law.” (Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at [290 para. D]; See alsoOjukwu (supra) at [637 paras. F–G]).

The Respondent, having placed itself outside the pale of legality, cannot validly invoke the jurisdiction of this Court until it has purged its contempt and restored the authority of the appellate judgment. Until then, every step taken in furtherance of the prosecution remains a nullity in law and an affront to justice.

ISSUE 2: Whether this Honourable Court possesses jurisdiction to entertain or sustain any charge against the Defendant/Applicant under a repealed statute—particularly the Terrorism (Prevention Amendment) Act 2013 and the Customs and Excise Management Act (CEMA)—having regard to Section 98(3) of the Terrorism (Prevention and Prohibition) Act 2022, Section 122(2)(a) of the Evidence Act 2011, and the constitutional prohibition under Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

13. My Lord, the jurisdiction of this Honourable Court is wholly statutory; once the enabling statute founding a charge is repealed, the court’s competence collapses. The law is settled that a repealed statute ceases to exist and cannot sustain any proceeding. In Okafor v A-G Anambra State(1991) 6 NWLR (Pt. 200) 659 at [682–683 paras. E–F], Nnaemeka-Agu JSC held:

“When a law has been repealed, it is dead and cannot by interpretation be resuscitated. The duty of the court is to apply the law in force at the time the cause of action arose or the proceedings were taken.”

See also A-G Abia State v A-G Federation(2006) 16 NWLR (Pt. 1005) 265 at [374 paras. C–D], affirming that jurisdiction is extinguished where the enabling law is repealed.

14. The Terrorism (Prevention and Prohibition) Act 2022 (Act No. 18 of 2022) came into force on 12 May 2022. By its Section 98(3), it unequivocally provides:

“The Terrorism (Prevention) Act 2011 and the Terrorism (Prevention) (Amendment) Act 2013 are repealed.”

This legislative command is unambiguous. From 12 May 2022, the 2011/2013 regime ceased to have legal effect, supplanted by a comprehensive new enactment. Consequently, all six terrorism counts in the instant charge—framed under the repealed 2013 Act—are statutorily void and incapable of founding any prosecution.

15. The trial court erred gravely by failing to take judicial notice of this repeal in its ruling on the Defendant’s no-case submission, despite the mandatory obligation under Section 122(2)(a) of the Evidence Act 2011, which compels courts to notice “without formal proof, all laws and enactments having the force of law in Nigeria.” The repeal, published in the Federal Gazette, is a public fact binding on the court. This omission constitutes a failure to fulfil a condition precedent to jurisdiction, as enunciated in Madukolu v Nkemdilim (1962) 1 All NLR 587 at [595 paras. E–G]. In FRN v Ifegwu (2003) 15 NWLR (Pt. 842) 113 at [134 paras. D–E], the Supreme Court held:

“Once a conviction or trial is void, there is nothing upon which a stay or further proceedings can operate.”

16. The error is aggravated by the prosecution’s reliance on Count 7, laid under the Customs and Excise Management Act (CEMA) Cap. C45 LFN 2004, expressly repealed by Section 311(1)(a) of the Nigeria Customs Service Act 2023 (Act No. 22 of 2023), effective 30 March 2023, which provides:

“The Customs and Excise Management Act, Cap. C45, Laws of the Federation of Nigeria, 2004 is hereby repealed.”

Count 7, alleging an offence under a non-existent statute, violates Section 36(12)of the Constitution, which prohibits prosecution for undefined offences. In Aoko Fagbemi (1961) 1 All NLR 400 at [403 paras. A–C], the Supreme Court nullified a conviction under a non-existent law. Similarly, Nigerian Ports Authority v Construzioni Generali Farsura Cogefar Spa(1974) 1 All NLR (Part II) 463 at [482 paras. D–E] held that repealed laws render proceedings incompetent. Count 7 is thus a juridical nullity, independently voiding the prosecution.

17. It is respectfully submitted that Section 98(3) of the TPPA 2022 cannot save a proceeding extinguished by appellate discharge and statutory repeal. The saving clause preserves only pendingproceedings, not defunct ones. The Court of Appeal’s judgment of 13 October 2022 (CA/ABJ/CR/625/2022) declared the trial void for want of jurisdiction, terminating all proceedings. As held in Dangote v CSC Plateau State (2001) 9 NWLR (Pt. 717) 132 at [150 paras. E–G]:

“Where a statute is repealed and no valid proceeding subsists, no action can be founded thereon.”

Okafor v A-G Anambra State (supra) and FRN v Ifegwu (supra) confirm that a void trial leaves nothing to preserve. Reliance on the repealed 2013 Act is legislative necromancy—a nullity incapable of resurrection.

18. The continued assumption of jurisdiction under the repealed 2013 Act and CEMA offends Section 36(12) of the Constitution, which forbids conviction for any offence “not defined and the penalty not prescribed in a written law.” Once repealed, the offences are undefined and incapable of prosecution. In Aoko v Fagbemi (supra), the Supreme Court quashed a conviction for this reason. See alsoAbacha v Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at [289–290 paras. B–D], affirming that constitutional and international norms prevail over inconsistent domestic acts.

19. The Supreme Court’s pronouncement in FRN v Kanu (SC/CR/1364/2022, 15 December 2023, per Garba Lawal JSC) that the 2013 Act “remains extant and subsisting” was per incuriam, having ignored the plain repeal in Section 98(3) TPPA 2022 and the judicial-notice obligation under Section 122(2)(a) Evidence Act. A decision given in ignorance of a binding statute is not binding. As held in Bucknor-Maclean v Inlaks Ltd (1980) 8–11 SC 1 at [24–25] per Eso JSC:

“A decision given per incuriam is one given in ignorance of a statute or binding precedent and is not to be followed.”

See also Osakue v FCE Asaba (2010) 10 NWLR (Pt. 1201) 1 at [34 paras. A–C], where Rhodes-Vivour JSC reaffirmed that courts are not bound to follow per incuriam decisions.

20. The law presumes that Parliament does not legislate in vain. To uphold a repealed enactment as “extant” nullifies the National Assembly’s deliberate repeal and violates Section 1(3) of the Constitution, which asserts constitutional supremacy. In Abacha v Fawehinmi (supra), the Supreme Court held that courts must uphold constitutional norms over inconsistent acts. See also Labiyi v Anretiola (1992) 8 NWLR (Pt. 258) 139 at [163 paras. E–G], where the Court emphasized its duty to “jealously guard its jurisdiction against statutory erosion.”

21. Accordingly, the trial court’s ruling on the no-case submission and any continued prosecution are nullities for want of jurisdiction. The repealed 2013 Act and CEMA, extinguished by Section 98(3) TPPA 2022 and Section 311(1)(a) NCS Act 2023, provide no legal substratum for the charges. Section 36(12) forbids prosecution under non-existent laws, as affirmed in Aoko v Fagbemi (supra) and Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at [717 paras. D–E]. The Supreme Court’s per incuriam holding in FRN v Kanu(supra) ignores statutory repeal, rendering it non-binding per Bucknor-Maclean (supra). Madukolu v Nkemdilim (supra) at [595 paras. E–G] mandates that jurisdiction requires fulfilment of all conditions precedent—conditions absent here due to repeal. To proceed is to substitute executive will for legislative authority—a constitutional aberration.

22. In the alternative, should this Honourable Court consider further ventilation necessary, we humbly pray for an order striking out all charges framed under the repealed Terrorism (Prevention Amendment) Act 2013 and CEMA, as they offend Section 36(12) of the Constitution and lack jurisdictional foundation. Nigerian Ports Authority v Cogefar (supra) and Dangote v CSC Plateau State(supra) mandate dismissal where the enabling law is repealed.

23. My Lord, to permit a trial under repealed enactments would render legislative repeal meaningless and supplant parliamentary authority with executive fiat—a dangerous precedent. Labiyi v Anretiola(supra) at [163 paras. E–G] warns that courts must “jealously guard their jurisdiction against statutory erosion.” The rule of law demands fealty to Sections 1(3) and 36(12) of the Constitution. This Honourable Court is urged to declare all proceedings under the repealed 2013 Act and CEMA null and void, restoring the majesty of justice and the sanctity of legislative intent.

ISSUE 3:

Whether, in view of the extraordinary rendition of the Defendant/Applicant from Kenya without extradition proceedings or compliance with the jurisdictional thresholds in Section 76(1)(d)(ii)–(iii) of the Terrorism (Prevention and Prohibition) Act 2022, this Honourable Court can lawfully assume jurisdiction to try or continue any charge against him, having regard to Sections 36(1), (8), and (9) of the Constitution, the African Charter on Human and Peoples’ Rights, and the binding pronouncement of the Court of Appeal in FRN v. Kanu (CA/ABJ/CR/625/2022).

24. My Lord, jurisdiction is a living, continuous competence governed by the law in force at the time of trial, not by repealed enactments or executive fiat. As Nnaemeka-Agu, JSC held in Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) 659 at [682–683 E–F]:

“When a law has been repealed, it is dead and cannot by interpretation be resuscitated. The duty of the court is to apply the law in force at the time the cause of action arose or the proceedings were taken.”

In 2025, the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022) exclusively regulates terrorism jurisdiction. All questions of competence must be determined by reference to that Act.

25. Section 76(1) vests jurisdiction conditionally. Where the alleged offender is “outside Nigeria,” the Court’s competence arises only if one of the gateways in Section 76(1)(d)(i)–(iii) is satisfied. The relevant thresholds are:

“76. (1) The Federal High Court (in this Part referred to as ‘the Court’) has jurisdiction to try offences under this Act or any other related enactment and to hear and determine proceedings arising under this Act whether or not the offence was commenced in Nigeria and completed outside Nigeria, and the victim or the alleged offender is—

…

(d) outside Nigeria—

(ii) where the alleged offender is in Nigeria and not extradited to any other country for prosecution, or

(iii) by a Nigerian, if the person’s conduct would also constitute an offence under a law of the country where the offence was committed.”

These are mandatory conditions precedent—“shall” jurisdictional gateways—not discretionary guides.

26. By the third limb of Madukolu v. Nkemdilim(1962) 1 All NLR 587 at [595 E–G], a court is competent only where “the case comes before it initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” Compliance with Section 76(1)(d)(ii)–(iii) is thus a jurisdictional threshold. Absent satisfaction of these provisions, the Court is divested of competence ab initio.

27. In FRN v. Kanu (CA/ABJ/CR/625/2022, 13 Oct 2022; Adefope-Okojie, JCA; Sankey & Tobi, JJCA concurring) at pp. 3–4, lines 64–90, the Court of Appeal held:

“By his extraordinary rendition from Kenya, the lower court, or indeed any court in this country, is divested of jurisdiction to entertain the charges against the Appellant.”

This ratio, consonant with Section 76(1)(d)(ii)–(iii), remains binding until overruled. Nigeria cannot bypass extradition (contrary to 76(1)(d)(ii)) nor try a Nigerian for extraterritorial conduct without establishing double criminality (76(1)(d)(iii)).

28. The prosecution may contend that Section 76(1)(d)(ii)–(iii) post-dates the June 2021 rendition and cannot apply retroactively. This is misconceived. Jurisdiction is tested by the law in force at trial. In Ogugu v. State (1994) 9 NWLR (Pt. 366) 1 at 27, the Supreme Court held that “procedural statutes affecting jurisdiction apply immediately to pending proceedings.” Likewise, Labiyi v. Anretiola(1992) 8 NWLR (Pt. 258) 139 at [163 E–G] affirms that a jurisdictional statute governs proceedings forthwith. TPPA 2022 is thus contemporaneously applicable.

29. Section 76(1)(d)(ii)–(iii) codifies pre-existing constitutional and international obligations. Sections 36(1), (8), and (9) of the 1999 Constitution guarantee fair hearing, protection against ex post facto trials, and freedom from double jeopardy. Articles 6, 7, and 12(4) of the African Charter on Human and Peoples’ Rights (Cap. A9 LFN 2004) mandate liberty, fair trial, and lawful expulsion. In Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at [289–290 B–D], a 7-justice constitutional bench, per Ogundare JSC, held: “By Cap. 10 the African Charter is now part of the laws of Nigeria and, like all other laws, the Courts must uphold it.” This prevails over the 5-justice panel in FRN v. Kanu(2023), as Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 274 affirms that a full bench’s decision binds unless overruled by a court of equal strength. A-G Federation v. A-G Abia State(2001) 11 NWLR (Pt. 725) 689 at 737 reinforces that domesticated treaties prevail over conflicting actions. See also Fawehinmi v. Abacha (No. 2)(2000) 9 NWLR (Pt. 475) 710 at [744 C].

30. Nigerian and comparative jurisprudence reject trials founded on illegal capture. Abiola v. FRN(1995) 1 HRLRA 199 at [210–212] condemned evasion of due process. In Umaru Dikko v. Government of Nigeria [1985] 1 QB 105 (CA) and R v. Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 (HL), Lord Griffiths at p. 61 stated:

“It would be an affront to the public conscience and the rule of law to try him.”

Section 76(1)(d)(ii)–(iii) domestically enshrines this principle: no extradition bypass; strict double criminality.

31. Factually, the Defendant’s transfer from Kenya occurred without extradition proceedings, judicial supervision, or bilateral request—flouting Section 76(1)(d)(ii), which requires the offender’s lawfulpresence in Nigeria via extradition, not rendition. Nor has the prosecution tendered any Kenyan judicial determination to satisfy Section 76(1)(d)(iii), which mandates that the alleged conduct“would also constitute an offence under a law of the country where the offence was committed.” In A-G Anambra v. Okeke (2002) 12 NWLR (Pt. 782) 575 at 605, the Court held that extradition requires strict compliance with bilateral treaties or domestic law, absent which jurisdiction fails. The rendition, devoid of legal process, violates both statutory thresholds, divesting this Court of competence.

32. The Respondent may rely on FRN v. Kanu(SC/CR/1364/2022, 15 Dec 2023, per Garba Lawal, JSC), claiming it “revived” jurisdiction despite rendition. This is per incuriam, as the 5-justice panel failed to engage Section 76(1)(d)(ii)–(iii) TPPA 2022 or the Court of Appeal’s binding ratio in FRN v. Kanu(CA/ABJ/CR/625/2022), which remains operative until expressly overruled. In Bucknor-Maclean v. Inlaks Ltd (1980) 8–11 SC 1 at [24–25], Eso JSC held: “A decision given per incuriam is one given in ignorance of a statute or binding precedent and is not to be followed.” See also Osakue v. FCE Asaba (2010) 10 NWLR (Pt. 1201) 1 at [34 A–C]. Madukolu v. Nkemdilim (supra) at [595 E–G] mandates strict fulfilment of conditions precedent, unmet here due to rendition.

33. The doctrine of male captus bene detentus has no place in our constitutional order. In U.S. v. Toscanino (1974) 500 F.2d 267 at 275, the Court held that the State “cannot rely on the fruits of its own illegality.” Sections 36(1), (8), (9) and the African Charter elevate liberty and fair trial as non-derogable rights. Trial post-rendition would constitutionalize illegality.

34. My Lord, jurisdiction is not a reward for executive lawlessness. Section 76(1)(d)(ii)–(iii) reflects Nigeria’s commitment to lawful counter-terrorism. As Eso JSC warned in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at [637 F–G]:

“The rule of law presupposes that the State itself is subject to the law. To tolerate lawlessness by the State is to invite anarchy.”

To sustain trial post-rendition invites judicial complicity in that anarchy.

35. Accordingly, this Honourable Court lacks jurisdictional competence to try or continue any charge against the Defendant/Applicant unless and until the Section 76(1)(d)(ii)–(iii) thresholds are satisfied—through lawful extradition processes and a double-criminality finding on the conduct in Kenya. Proceeding further would desecrate the rule of law and reward contempt.

35A. In the alternative, should this Honourable Court consider further ventilation necessary, the Defendant humbly prays for an order striking out the charge or directing his immediate release pending lawful extradition, as required by Section 35(1) CFRN and Article 6 African Charter. FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 and Abiola v. FRN (1995) 1 HRLRA 199 confirm that unlawful detention vitiates proceedings.

36. The majesty of justice demands that this Honourable Court decline jurisdiction until the Defendant is restored to legality via lawful extradition. Section 1(3) of the Constitution and the 7-justice ruling in Abacha v. Fawehinmi (supra) bind this Court to uphold the African Charter and Section 76(1)(d)(ii)–(iii) TPPA 2022 over a per incuriam 5-justice decision. As Eso JSC warned in Ojukwu (supra) at [637 F–G]: “To tolerate lawlessness by the State is to invite anarchy.” This Court is urged to declare these proceedings null and void, safeguarding the constitutional edifice and the rule of law.

ISSUE 4:

Whether the denial of fair hearing in Kenya, the breach of international comity, and continuing violations of Section 36 of the Constitution, the African Charter, and binding judicial pronouncements have vitiated the entire proceedings, rendering further trial unconstitutional and void.

37. My Lord, this issue strikes at the non-derogable foundation of criminal justice — the right to fair hearing. The chain of illegality that began with the Defendant’s seizure in Kenya and continues through his monitored detention in Abuja constitutes a complete breakdown of due process. Every judicial system anchored on the rule of law recognises that no trial may stand upon an unlawful foundation. See also Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at 618 (C–E).

38. The Kenyan High Court, in Kingsley Kanu v. Cabinet Secretary for Interior & Ors., Ex parte Nnamdi Kanu (2025) (Mwita J.), found that the Defendant’s arrest and transfer from Kenya to Nigeria “violated Kenya’s Constitution, the Extradition (Comm. Countries) Act Cap 77 Laws of Kenya, and the principles of international comity and due process.” It held further that he “was entitled to be produced before a Kenyan court prior to removal, which the authorities failed to do.” That judgment recognised the rendition as illegal, unconstitutional, and non-compliant with extradition law, making any subsequent Nigerian trial an affront to comity and international law. See also A-G v. Ekeocha (2008) 14 NWLR (Pt. 1106) 173 at 208 (C–E).

39. The United Nations Working Group on Arbitrary Detention (Opinion No. 25/2022) reached identical conclusions, finding that Mr Kanu’s rendition amounted to “a flagrant denial of due process and arbitrary detention contrary to Articles 6 and 7 of the African Charter and Article 14 ICCPR.” The UN Special Rapporteur on Torture (2023 communication) described it as “extraordinary rendition amounting to enforced disappearance.” International law thus recognises this as a continuing violation binding on Nigerian courts under Section 12(1) CFRN and Abacha v. Fawehinmi(2000) 6 NWLR (Pt. 660) 228 at 289–290 (B–D).

40. At the domestic level, the Federal High Court, Umuahia Division (Hon. Justice Evelyn Anyadike, FHC/UM/CS/30/2022), held that the Defendant’s extraordinary rendition was unlawful and unconstitutional, violating both the Constitution and the African Charter, and ordered his return to Kenya. It found that “the Nigerian Government acted in flagrant breach of its own laws.” That judgment, unappealed, subsists. See also Ojukwu v. Military Governor of Lagos State (1986) 1 NWLR (Pt. 18) 621 at 637 (F–G).

41. On 13 October 2022, the Court of Appeal, Abuja (per Oladotun Adefope-Okojie, JCA; Hanatu Sankey & Ebeowei Tobi, JJCA concurring) in FRN v. Kanu (CA/ABJ/CR/625/2022) declared:

“By his extraordinary rendition from Kenya, the lower court, or indeed any court in this country, is divested of jurisdiction to entertain the charges against the Appellant.”

That ratio remains binding until lawfully set aside. Jurisdiction cannot be resurrected by executive defiance. See also Okafor v. A-G Anambra State(1991) 6 NWLR (Pt. 200) 659 at 682–683 (E–F).

42. Section 36 of the Constitution is the keystone of legality. It is non-derogable under Section 45(1) CFRN and Article 4(2) ICCPR. “Non-derogable” means exactly that — no organ of government, not even the Supreme Court, may suspend or diminish it. The apex court has repeatedly acknowledged that constitutional rights are supreme and inviolable. In Garba v. University of Maiduguri(supra) at 618 (C–E), the Supreme Court held: “Where a tribunal acts in breach of the audi alteram partem rule, the whole proceeding is a nullity, however well conducted.” See also Adigun v. A-G Oyo State(1987) 1 NWLR (Pt. 53) 678 (SC); Ogugu v. State (1994) 9 NWLR (Pt. 366) 1 at 27 (C–E).

43. Section 36(1) and (6)(b)–(d) CFRN and Articles 6 and 7 African Charter guarantee that an accused shall be tried only before a court established by lawand given adequate time, facilities, and counsel of choice. These safeguards were nullified in Kenya when the Defendant was abducted without warrant, counsel, or hearing, and remain impaired through monitored detention. Ogugu v. State (supra) confirmed that the Charter’s fair-trial rights are directly enforceable in Nigeria.

44. The Extradition (Commonwealth Countries) Act, Cap. E25 LFN 2004, and the Kenyan Extradition Act, Cap. 77 Laws of Kenya, both mandate judicial oversight before surrender. Bypassing them destroys international comity and deprives this Court of jurisdiction to try the illegally transferred person. In R v. Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 (HL) at 61, Lord Griffiths warned: “It would be an affront to the public conscience and the rule of law to try a defendant where the executive has deliberately violated the processes of law.” That admonition applies mutatis mutandis to this case. See also U.S. v. Toscanino (1974) 500 F.2d 267 at 275 (2d Cir.).

45. The jurisprudence of our superior courts is unambiguous: a breach of fair hearing vitiates the entire proceedings. There is no doctrine of “partial validity” or “post-facto cure.” In FRN v. Ifegwu(2003) 15 NWLR (Pt. 842) 113 at 134 (D–E), the Supreme Court held: “Once a conviction or trial is void, there is nothing upon which further proceedings can operate.” See also Denloye v. MDPDC(1968) NMLR 306; Adigun (supra).

46. It is therefore juridically impossible to sustain the present charge while the foundational wrong—the Kenyan rendition—remains unpurged. Courts exist not to legitimise executive breaches but to protect citizens from them. As Karibi-Whyte JSC warned in Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 561 (E–F): “Court orders must be obeyed until set aside; to do otherwise is to invite anarchy.” The primary duty of every court is to defend the rights of the accused, not to shield executive illegality. See also Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 682 (D–E).

47. Monetary compensation cannot sanitise a criminal proceeding founded on illegality. Adigun and Garba (supra) establish that where fair hearing is denied, the entire proceeding is null; the victim need not seek damages elsewhere — the court must itself declare it void. This duty to restore legality is inherent in the court’s jurisdiction and conscience.

48. In the premises, the Defendant’s abduction from Kenya, in violation of the Kenyan Constitution, the Extradition Acts of both States, and Articles 6 and 7 of the African Charter, together with ongoing denial of fair-hearing facilities in Nigeria, has vitiatedthese proceedings beyond repair. Section 36 being non-derogable, its breach cannot be condoned or ratified by any court — not even the Supreme Court. To proceed further would enthrone lawlessness and subvert the constitutional order.

See also: Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 289–290 (B–D); Ojukwu (supra) at 637 (F–G); Ogugu (supra) at 27 (C–E); Ifegwu (supra) at 134 (D–E); Bennett (supra) at 61; Toscanino(supra) at 275.

ISSUE 5: WHETHER THE PERSISTENT DENIAL OF ADEQUATE FACILITIES FOR DEFENCE, THE EAVESDROPPING ON CONFIDENTIAL ATTORNEY–CLIENT COMMUNICATIONS, AND THE STATE’S INTERFERENCE WITH THE DEFENDANT’S PREPARATIONS FOR TRIAL CONSTITUTE A CONTINUING VIOLATION OF SECTION 36(6)(B)–(D) OF THE CONSTITUTION AND ARTICLE 7(1)(C) OF THE AFRICAN CHARTER, THEREBY VITIATING THESE PROCEEDINGS.

My Lord, this Issue concerns the substance of fair trial under Section 36(6)(b)–(d) CFRN 1999. The right to adequate facilities and unhindered communication with counsel is the constitutional oxygen of criminal justice. Any interference by the prosecution or detaining authority poisons the process ab initio. See also Ogugu v. State (1994) 9 NWLR (Pt. 366) 1 at [27 C–E].

Section 36(6)(b) guarantees that:

“Every person who is charged with a criminal offence shall be entitled to have adequate time and facilities for the preparation of his defence.”

Sub-paragraph (c) provides he shall be entitled “to defend himself in person or by legal practitioners of his own choice.” These rights are mirrored in Article 7(1)(c) & (2) of the African Charter on Human and Peoples’ Rights (Cap. A9 LFN 2004) and Article 14(3)(b) ICCPR, binding on Nigeria via domestication.

The UN Basic Principles on the Role of Lawyers (1990), Rule 22(2), stipulates:

“Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”

Nigeria, as a signatory, is bound under Article 26 of the Vienna Convention on the Law of Treaties to uphold this obligation.

The Defendant’s defence has been persistently obstructed. His conferences with counsel at the DSS facility are monitored, recorded, and bugged; legal documents are inspected; privileged notes are confiscated; and counsel have been denied private access on multiple occasions. These actions strike at the heart of Section 36(6)(b)–(c).

The United Nations Working Group on Arbitrary Detention, Opinion No. 25/2022, at para. 67, recorded that Mr Kanu’s consultations with counsel were “subject to surveillance and recording by State Security Service officers, violating his right to confidential communication and preparation of defence.” The UN Special Rapporteur on Torture (2023 communication) reiterated that such interference “amounts to continuing arbitrary detention under international law.” These findings align with Article 7(1)(c) African Charter and Article 14(3)(b) ICCPR, binding on Nigeria via Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at [289–290 B–D].

In Ogugu v. State (supra) at [27 C–E], the Supreme Court held:

“By virtue of Cap. 10 [the African Charter], the rights guaranteed under Article 7 are enforceable in Nigerian courts; any trial inconsistent with these guarantees is null and void.”

The Charter prohibits state intrusion into lawyer–client privacy, ensuring the defence is free, full, and fearless. See also Abacha v. Fawehinmi (supra).

The Court of Appeal in Duruaku v. Nwoke (2015) 18 NWLR (Pt. 1490) 511 at [537 C–E] held:

“A hearing which denies a party reasonable opportunity to present his case or which fetters his means of defence is a breach of fair hearing and is void.”

Surveillance, restricted access, and seizure of legal materials fetter the defence, vitiating these proceedings.

The prosecution may contend that surveillance or restricted access constitutes a “minor irregularity” curable by trial adjustments. This is misconceived. In Adigun v. A-G Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709, the Supreme Court held that fair hearing is “not a technical doctrine but a rule of substance; once violated, the entire proceeding is rendered void.” In Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89, the Court reaffirmed that any interference with constitutional safeguards, such as access to counsel, vitiates proceedings irrespective of perceived severity. These breaches, being substantive, admit no cure short of nullification.

The Defendant’s confinement under surveillance, with restricted access to counsel and confiscated legal materials, constitutes a constructive denial of counsel of choice and adequate facilities. In Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at [618 C–E], the Supreme Court held that a breach of audi alteram partem renders proceedings “a nullity, however well conducted.” See also Duruaku v. Nwoke (supra) at [537 C–E]: “A hearing which fetters the means of defence is void.” The African Commission in Law Office of Ghazi Suleiman v. Sudan (Comm. No. 222/98, 2003) AHRLR 144 at para. 39 declared: “Monitoring of lawyer–client communications violates Article 7(1)(c) and renders the trial unfair.” The court’s primary duty, per Sofekun v. Akinyemi (1980) 5–7 SC 1 at 17, is to act as “sentinel over the citizen’s constitutional rights,” not to condone state interference.

In FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 at [134 D–E], the Supreme Court held that a trial disregarding constitutional guarantees is “a nullity, however well intentioned.” See also Denloye v. MDPDC (1968) NMLR 306 at 312. There is no “partial validity” for such a foundational defect.

Courts exist to protect the accused’s rights, not to shield executive illegality. In Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at [561 E–F], Karibi-Whyte JSC held: “Court orders must be obeyed until set aside; to do otherwise is to invite anarchy.” See also Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at [682 D–E]. The court’s duty is to uphold constitutional guarantees, not to condone breaches.

Monetary compensation cannot sanitize a trial tainted by fair-hearing violations. Adigun (supra) and Garba (supra) confirm that such breaches nullify proceedings; the remedy lies in setting aside the trial, not civil damages. This Court must restore legality within its criminal jurisdiction.

In the alternative, should this Honourable Court require further ventilation, the Defendant prays for an order striking out the charges or directing the immediate cessation of surveillance and interference with attorney–client communications, as mandated by Section 36(6)(b)–(d) CFRN and Article 7(1)(c) African Charter. FRN v. Ifegwu (supra) at [134 D–E] and Duruaku v. Nwoke (supra) at 537 confirm that such violations void proceedings unless remedied.

In the premises, the persistent surveillance, confiscation of legal materials, and restricted access to counsel constitute continuing violations of Section 36(6)(b)–(d) CFRN and Article 7(1)(c) African Charter, vitiating these proceedings ab initio. As sentinel of constitutional rights, per Sofekun v. Akinyemi (supra) at 17, this Honourable Court must not countenance state lawlessness. Ojukwu v. Military Governor of Lagos State (1986) 1 NWLR (Pt. 18) 621 at [637 F–G] warns: “To tolerate lawlessness by the State is to invite anarchy.” This Court is urged to declare these proceedings null and void, restoring the sanctity of justice. See also Ogugu v. State (supra); Adigun (supra); Ifegwu (supra); Law Office of Ghazi Suleiman (supra).

ISSUE 6:

Whether the continued prosecution of the Defendant on Counts 1, 2, 3, 4, 5, and 8—arising from the same factual matrix as Counts 6, 7, 9, 10, 11, 12, 13, and 14 earlier struck out by Hon. Justice Binta Nyako—violates the constitutional bar against double jeopardy under Section 36(9) of the 1999 Constitution and the “same-ingredients” test recognised by Nigerian and international law.

63. My Lord, this Issue strikes at the constitutional protection against double jeopardy. Section 36(9) CFRN 1999 forbids any person from being tried twice “for the same offence or for a criminal offence having the same ingredients.” Article 7(1)(b) of the African Charter (Cap. A9 LFN 2004) reinforces this guarantee; it is domesticated and binding. The doctrine of autrefois acquit ensures finality and repose in criminal justice, shielding the citizen from perpetual harassment. See Ijeoma v. Queen (1962) 2 SCNLR 250 at 255; Okafor v. State(1976) 5 SC 13 at 20. See also Abacha v. Fawehinmi(2000) 6 NWLR (Pt. 660) 228 at [289–290 B–D] (Charter enforceable by Nigerian courts).

64. The record of proceedings in FHC/ABJ/CR/383/2015 shows that on 8 April 2022, Binta Nyako, J., struck out Counts 6, 7, 9, 10, 11, 12, 13, and 14 for disclosing “no offence known to law” and for being “repetitive, vague, or duplicative.” The ruling followed full adversarial argument. It is, in substance, a merits-based discharge tantamount to an acquittal for purposes of Section 36(9). In Okabule v. State (2016) 14 NWLR (Pt. 1532) 303 at 329, the Court of Appeal held that striking out a charge for lack of legal foundation is a determination on the merits that bars reprosecution. See also Ijeoma v. Queen (supra).

65. A textual and factual comparison of the retained and struck-out counts—evidenced by the photographic extracts tendered as Exhibit “X” in the record (the pages showing Counts 1–15)—reveals their identity of ingredients. Each of Counts 1–8 (save Count 15) accuses the Defendant of making or directing broadcasts “received and heard in Nigeria” between 2018 and 2021 with intent to intimidate the population, incite violence, or destabilise. The struck-out Counts 6–14 rest on the same factual nucleus—the same broadcasts, same recordings, same witnesses—merely dressed in variant diction (“intimidate,” “incite,” “destabilise”). All cite Section 1(2)(b) or (h) of the (now repealed) Terrorism (Prevention) Amendment Act 2013. The actus reus (broadcasts said to fuel unrest) and mens rea (intent to intimidate/incite) are identical.

66. The Supreme Court’s governing test is clear. In Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383 at [422 A–C], the Court held:

“What determines the sameness of offences is not the label or nomenclature but the identity of the facts and ingredients. If the facts are the same and the evidence to prove them is the same, a second trial is barred.”

See also Eze v. State (1985) 3 NWLR (Pt. 13) 429 at 435. Under this same-ingredients test, the retained counts replicate the struck-out counts and are therefore constitutionally barred.

67. By persisting with Counts 1, 2, 3, 4, 5, and 8, the prosecution is re-litigating the same conductalready neutralised by the coordinate court, thereby violating Section 36(9) and Article 7(1)(b). The Supreme Court in Egboghonome (supra) warned that allowing reprosecution where the facts and proof are the same “would make a mockery of constitutional protection and expose citizens to perpetual harassment.” Internationally, the House of Lords in Connelly v. DPP [1964] AC 1254 at 1305 condemned attempts to repackage the same misconduct under different verbal formulas; and Article 4(1) ICCPR (ne bis in idem) forbids double prosecution for the same conduct. The Court must not countenance such constitutional mockery. See also Abacha v. Fawehinmi (supra).

68. The doctrine of finality of judicial actsintensifies the bar. In A-G Lagos State v. A-G Federation(2014) 9 NWLR (Pt. 1412) 217 at [263 F–H], the Supreme Court held:

“A subsisting judgment remains binding until expressly set aside by a competent appellate court.”

Her Lordship’s discharge therefore binds unless expressly reversed; no court of coordinate jurisdiction may reopen it. See also A-G Ondo v. A-G Ekiti (2001) 17 NWLR (Pt. 743) 706 at [756 B–E] (constitutional guarantees are self-executing).

69. It is anticipated that the Respondent will brandish the proviso “unless set aside by a superior court,”positing that the Supreme Court’s decision of 15 December 2023 (FRN v. Kanu, SC/CR/1364/2022) displaced Justice Nyako’s ruling. With respect, that is misconceived: the Supreme Court neither reviewed nor expressly set aside the striking-out of Counts 6–14. Its remit was rendition and remittal; there was no reinstatement order for the struck-out counts. Under A-G Lagos State v. A-G Federation (supra) at [263 F–H], only an express appellate reversal can nullify a subsisting judgment. None exists. The discharge of Counts 6–14 standsand bars reprosecution.

70. Nor can the “superior-court proviso” override Section 36(9). In A-G Ondo v. A-G Ekiti (supra) at [756 B–E], the Supreme Court reaffirmed that constitutional rights are self-executing and admit of no derogation save as the Constitution itself provides. Autrefois acquit operates proprio vigoreonce the earlier discharge subsists; it does not await a later indulgence.

71. The same-ingredients identity is plain. Count 1alleges a 2021 broadcast “to intimidate the population”; Count 2 rephrases it as “a deadly threat that anyone who flouted the sit-at-home order should write his/her will”; Counts 3–5 criminalise professing IPOB leadership while repeating the same incitement-by-broadcast theme; Count 8 adds the allegation of directing IPOB to manufacture bombs—yet still tied to the same broadcast motif and proof. Each mirrors the struck-out Counts 6–14, which were anchored on the very same broadcasts and Section 1(2)(b)/(h) of the repealed 2013 Act. The evidence set is the same; the ingredients are the same.

72. The Supreme Court in Kalu v. State (1998) 13 NWLR (Pt. 583) 531 at [555 B–E] declared:

“Once an accused has been discharged on a charge whose ingredients are identical with those of a subsequent charge, the principle of autrefois acquit operates to bar the second trial.”

This pronouncement is dispositive here.

73. Even if the Respondent were to argue that Justice Nyako merely “struck out” (and did not “discharge”), the substance—not the label—governs. A strike-out because the count discloses no legal offence is a merits determination that extinguishes liability and bars reprosecution. Okabule v. State (supra) at 329. See alsoEgboghonome v. State (supra); Okafor v. State (1976) 5 SC 13 at 20 (a void foundation cannot sustain a later trial).

74. A further layer of nullity: Counts 1–8 (the “broadcast counts”) are all predicated on the repealed Terrorism (Prevention) Amendment Act 2013, which the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022) repealed(s.98(3))—a point fully argued under Issue 2. A repealed statute cannot sustain a valid criminal charge. See Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) 659 at [682–683 E–F]. Thus, beyond double jeopardy, these counts fail for want of a subsisting charging law.

75. The jurisprudence is settled that the rule of autrefois acquit applies even within the same proceedings, once a court has judicially freed the accused from liability on those facts. See Ijeoma v. Queen (supra); Mohammed v. State (2018) 13 NWLR (Pt. 1636) 201 at 230 (where counts are factually identical, later reprosecution is incompetent).

76. To remove any doubt, the Anglo-American comparator matches our law. Blockburger v. United States (1932) 284 U.S. 299 and R v. Brock [1973] QB 321 apply the elements/ingredients test: if each offence does not require proof of a fact the other does not, they are the same offence and a second trial is barred. That is precisely our Egboghonometest.

77. The only arguable outlier is Count 15 (alleged importation of a radio transmitter under the Criminal Code). It rests on a distinct factual footing(importation/possession elements) and a different statute, and therefore can be severed if the Court so determines. Mohammed v. State (supra) at 230 confirms that factually distinct counts may be severed to preserve valid proceedings. But the broadcast counts—1, 2, 3, 4, 5, and 8—are constitutionally barred.

78. In consequence, Counts 1, 2, 3, 4, 5, and 8offend Section 36(9) CFRN and Article 7(1)(b) African Charter, rendering any proceedings thereon a nullity ab initio. This Honourable Court is respectfully urged to:

(i) Hold that Counts 1–8 (save Count 15) violate the constitutional bar against double jeopardy; and

(ii) Strike out said counts as unconstitutional, oppressive, and void.

In the alternative, the Defendant prays for an order staying proceedings on Counts 1–8 pending appellate clarification or an order severing Count 15for separate consideration, as mandated by Egboghonome v. State (supra) and Mohammed v. State (supra). See also Kalu v. State (supra); A-G Lagos v. A-G Federation (supra); A-G Ondo v. A-G Ekiti (supra).

79. In further support, Connelly v. DPP [1964] AC 1254 at 1305 (HL) teaches that it is an abuse of process to re-label the same conduct under different verbal formulas in order to prosecute afresh; the principle dovetails with Article 4(1) ICCPR (the ne bis in idem guarantee) which bars repeated prosecution for the same act. Nigerian authority is to like effect: in Eze v. State (1985) 3 NWLR (Pt. 13) 429 at 435, the Court held that the controlling inquiry is the identity of facts and ingredients, not the prosecutorial label. Where a count is struck out because it discloses no offence known to law, reprosecution is impermissible—see Okabule v. State(2016) 14 NWLR (Pt. 1532) 303 at 329, treating such a strike-out as a merits determination that bars a second bite. The older but still determinative autrefois principles are restated in Ijeoma v. Queen (1962) 2 SCNLR 250 at 255, confirming that once a court has judicially freed the accused on a given factual nucleus, later proceedings on the same ingredients are constitutionally proscribed. And because the African Charter is domesticated and binding, Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at [289–290 B–D] compels Nigerian courts to enforce its fair-trial and ne bis in idem protections, thereby reinforcing the constitutional bar against double jeopardy.

ISSUE 7:

Whether the purported proscription of the Indigenous People of Biafra (IPOB) obtained ex parte under the Terrorism Prevention (Amendment) Act 2013, in disregard of Section 36 of the Constitution, the African Charter, and the ICCPR, can ground a valid conviction or form a lawful basis for continued prosecution while the legality of that proscription remains sub judice before the Supreme Court.

80. My Lord, this issue strikes at the heart of constitutional supremacy. Section 1(1)–(3) of the 1999 Constitution renders void any law or act inconsistent with its provisions. Section 36(1)guarantees that “in the determination of his civil rights and obligations, including any question or determination by or against any government, every person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal constituted in such manner as to secure its independence and impartiality.” This right is non-derogable under both municipal and international law. See Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt 200) 708 at 761; Abacha v. Fawehinmi (2000) 6 NWLR (Pt 660) 228 at 289–290 (B–D); and Article 4(2) ICCPR.

81. In FHC/ABJ/CR/383/2015, Binta Nyako, J., in a reasoned ruling, held that “there is no evidence before this Court that IPOB is an unlawful society. ”That pronouncement—made in personam but reflecting the factual and legal status of IPOB—has never been set aside by any superior court and therefore remains binding under the doctrine of finality. See A-G Lagos State v. A-G Federation(2014) 9 NWLR (Pt 1412) 217 at 263 (F–H).

82. Instead of adducing the missing evidence before the same court or on appeal, the Attorney-General of the Federation resorted to forum-shopping—initiating a fresh ex parte proceeding before the Federal High Court (Per Kafarati, J., as he then was) and securing an order purporting to proscribe IPOB and declare it a terrorist organisation. That order was obtained without notice, hearing, or adversarial contest, in flagrant violation of Section 36(1)–(2)of the Constitution and Articles 7 & 26 of the African Charter. Such a procedure, being inconsistent with constitutional due-process guarantees, is ipso facto void. See Unilorin v. Oluwadare (2006) 14 NWLR (Pt 1000) 751 at 778 (E–G) (per Ogbuagu JSC: “where a party is condemned unheard, the entire proceedings collapse like a pack of cards”).

83. The Court of Appeal’s later holding that the proscription of IPOB was sui generis and therefore not subject to Section 36 safeguards is manifestly perverse. It contradicts the principle that no statutory label can oust constitutional due process. In Denton-West v. Yoruba Council of Elders(2021) 15 NWLR (Pt 1809) 129 at 160 (C–F), the Court of Appeal itself affirmed that even sui generis proceedings must comply with Section 36. The Constitution’s supremacy clause in Section 1(3) precludes any statute or order from eclipsing fair hearing.

84. My Lord, proscription of an organisation is not a mere administrative act; it criminalises membership and imposes penal consequences under the Terrorism Acts. Hence, the procedure must conform to the criminal-justice guarantees of fair hearing, notice, and representation. The Federal High Court’s ex parte proscription of IPOB thus violates not only Section 36 but also Articles 7 & 26 of the African Charter and Article 14 ICCPR, all of which form part of Nigerian law. See Abacha v. Fawehinmi(supra).

85. The prosecution is expected to argue that the Court of Appeal’s decision, however flawed, binds this Court until reversed. That contention collapses upon examination. First, the Appeal Court’s pronouncement was not a judgment inter partes between Kanu and the State, but a general statement in collateral proceedings; second, an unconstitutional decision cannot bind a constitutional court. As the Supreme Court held in A-G Abia v. A-G Federation (2006) 16 NWLR (Pt 1005) 265 at 375 (D–E): “Where two laws conflict, one constitutional and the other statutory, the Constitution prevails and the statutory provision, to the extent of the inconsistency, is void.” Therefore, even if the sui generis pronouncement were extant, it cannot compel this Court to violate Section 36.

86. Furthermore, the Defendant cannot lawfully be tried or convicted upon a law whose validity is sub judice before the Supreme Court. Judicial prudence and constitutional hierarchy forbid a trial court from assuming the correctness of a statute or order whose legality is under active appellate scrutiny. In A-G Anambra v. A-G Federation (2007) 12 NWLR (Pt 1047) 4 at 50 (F–G), the Supreme Court warned that “no inferior court may act on a matter whose constitutionality awaits determination by this Court.” To proceed would offend the rule against pre-emption and prejudice the pending appeal.

87. The logical corollary is that any criminal proceeding premised upon the proscription order or its effects is premature, unconstitutional, and void. A trial founded on an untested and possibly void law is itself void. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (per Bairamian FJ): a court is competent only where (a) it is properly constituted, (b) the subject matter is within its jurisdiction, (c) the case comes before it initiated by due process of law, and (d) any condition precedent to jurisdiction has been fulfilled. Here, the absence of a valid proscription and of a fair-hearing procedure means condition (d) is unmet; jurisdiction is fatally tainted.

88. The constitutional scheme insists that fair hearing precedes condemnation, never the reverse. The Federal High Court’s ex parte route inverted that order. This inversion cannot be redeemed by retrospective argument, for ex parte criminalisation is alien to Nigerian jurisprudence. In Ojukwu v. Military Governor of Lagos State (1986) 1 NWLR (Pt 18) 621 at 636, the Supreme Court admonished that “the rule of law presupposes that government itself is subject to law; otherwise all liberty is lost.” By criminalising association without hearing, the State placed itself above the Constitution.

89. In this context, the Court’s paramount duty is to defend the rights of the accused, not to rationalise executive overreach. As Tobi JSC reminded in FRN v. Ifeagwu (2003) 15 NWLR (Pt 842) 113 at 148, “the primary obligation of every court is to safeguard the accused person’s constitutional guarantees; once these are violated, the entire trial is vitiated.” The Federal High Court’s ex parteproscription — executed behind the back of those affected—offends every known canon of due process.

90. It follows inexorably that the IPOB proscription order is constitutionally infirm. A conviction predicated upon it would rest on a void foundation, collapsing under Section 1(3) of the Constitution. Until the Supreme Court finally determines the pending appeal on the validity of that proscription, any reliance on it to sustain criminal liability is a nullity ab initio.

91. Accordingly, this Honourable Court is most respectfully urged to:

Hold that the ex parte proscription of IPOB, being obtained in violation of Section 36 CFRN, Articles 7 & 26 of the African Charter, and Article 14 ICCPR, is unconstitutional and void;

Find that Justice Binta Nyako’s earlier determination—that IPOB is not an unlawful society—remains subsisting and binding until set aside by a competent appellate court; and

Declare that no conviction or further prosecution can lawfully proceed upon a proscription whose legality is pending before the Supreme Court.

Dated this ______day of _____________2025.

_______________________________

MAZI NNAMDI KANU

Defendant/Applicant

DSS Detention Facility

Headquarters, Aso Drive

Abuja, Nigeria

FOR SERVICE ON:

THE COMPLAINANT/RESPONDENT

Thru Her Counsel:

Asiwaju Adegboyega Awomolo, SAN

Adegboyega Awomolo and Associates

Victoria Court, Plot 182

44 Crescent, CITEC Villas

Gwarinpa, ABUJA.