A lawyer with the Mazi Nnamdi Kanu Global Legal Consortium, Onyedikachi Ifedi, has questioned the legal basis for the Supreme Court’s decision to revive criminal charges that had previously been quashed by the Court of Appeal in the trial of the leader of the Indigenous People of Biafra, IPOB, Nnamdi Kanu.
Ifedi argued that the Supreme Court, while exercising its appellate jurisdiction, had not identified the law that empowered it to resurrect counts that the Court of Appeal had already struck out of the charge against Kanu. He also challenged what he described as the apex court’s decision to substitute the statutory foundation of one of the counts, arguing that the judiciary could not create or alter the legal basis of a criminal accusation without a specific legal authority.
The lawyer raised the questions in a statement made available to journalists in Umuahia, insisting that the issues surrounding the status of the charges remained fundamental to the continuation of Kanu’s trial before the Federal High Court in Abuja.
His argument centres on the Court of Appeal’s October 13, 2022 ruling, in which the appellate court discharged and acquitted Kanu on several counts contained in the 15-count charge. The court struck out counts 6, 7, 8, 9, 10, 11, 12 and 14 after finding that they did not disclose any offence against the defendant. Counts 1, 2, 3, 4, 5, 13 and 15 were retained.
However, the Supreme Court subsequently set aside the Court of Appeal’s decision in its judgment delivered on December 15, 2023. The apex court ordered that the case be remitted to the Federal High Court for continuation of the trial.
It was this development that Ifedi said raised questions about how the counts earlier quashed by the Court of Appeal became available for further proceedings. According to him, the Supreme Court’s appellate jurisdiction did not, by itself, give the court the power to revive a criminal charge that had already been quashed.
“What law revived the seven counts quashed by the Court of Appeal? What law authorised the Supreme Court to substitute the statutory foundation of Count 15, later numbered Count 7 at the Federal High Court?” Ifedi asked.
He argued that the Supreme Court might have broad authority within the judicial hierarchy, but that such authority remained subject to the law. According to him, appellate jurisdiction should not be interpreted as an automatic power to restore a charge that had ceased to have legal effect.
“The Supreme Court had appellate jurisdiction. But appellate jurisdiction does not itself confer a power to resurrect a quashed charge or rewrite the statutory foundation of a criminal accusation,” he said.
Ifedi challenged the apex court to identify the specific legal provision that authorised the actions he questioned, stressing that the Supreme Court itself remained subject to the law.
“If the law permits either act, show us the law,” he said, adding that while the Supreme Court is the highest court within Nigeria’s judicial hierarchy, it is “not supreme over the law.”
The lawyer also rejected arguments that judicial policy could provide the basis for actions that were not expressly authorised by legislation. He said the description of the Supreme Court as a “court of policy” could not mean that policy considerations gave it powers that the law had withheld.
“Policy cannot revive a quashed charge. Policy cannot replace a repealed statute. Policy cannot confer criminal jurisdiction,” Ifedi said.
He maintained that the courts could interpret and develop existing law but could not effectively legislate criminal provisions in order to achieve a particular judicial outcome.
“The Supreme Court may interpret and develop the law. It cannot legislate the criminal law required to reach a preferred outcome. It is supreme within the judicial hierarchy. It is not supreme over the law,” he said.
Ifedi further addressed the impact of the subsequent recusal of Justice Binta Nyako from Kanu’s case. He acknowledged that the judge’s recusal could explain why proceedings had to continue before another judge and why Kanu was required to enter a fresh plea. However, he argued that the procedural consequences of recusal did not resolve the more fundamental legal question concerning the status of the charges.
According to him, a change of judge could alter the procedure through which a case was heard, but it could not independently restore a criminal count that had already been quashed.
“Recusal can change the judge and restart procedure. It cannot answer a more fundamental question: what was the legal status of the counts to which the accused was asked to plead?” he said.
Ifedi argued that the Court of Appeal had expressly quashed the disputed counts, while the Supreme Court subsequently directed that the trial should continue. He said the fresh proceedings before another judge therefore raised the question of what legal mechanism had brought the previously quashed counts back into existence.
“The counts had been quashed by the Court of Appeal. The Supreme Court said the trial should ‘continue’. A new judge subsequently took a fresh plea and proceeded to trial,” he said.
He stressed that the issue was not simply whether a fresh plea could follow the recusal of a judge, but whether there was a legally valid criminal accusation upon which such a plea could be taken.
“The question is therefore not whether recusal could require a fresh plea. The question is: what law made the quashed counts legally cognisable again so that they could be put before a new judge for plea and trial?” he said.
According to Ifedi, the distinction was important because the Federal High Court’s general jurisdiction over terrorism-related offences could not automatically establish the legal existence of a particular charge against an accused person.
He said the court might possess jurisdiction over terrorism offences generally, but that such jurisdiction could only be exercised where there was first a legally cognisable accusation before the court.
“General terrorism jurisdiction is not enough. The Federal High Court has jurisdiction over terrorism offences. Nobody disputes that. But jurisdiction over terrorism generally is not the same thing as the existence of a live charge against a particular person,” he said.
“There must first be a legally cognisable accusation,” he added.
The lawyer also relied on a principle attributed to Justice Lawal Garba, who, according to Ifedi, stated that “a court cannot confer jurisdiction where the law has not conferred it.” Ifedi argued that the principle should apply regardless of the position of the court within the judicial system.
He said if a charge that had been quashed required legal revival before it could form the basis of another criminal proceeding, the authority for such revival should be clearly identifiable.
“If a quashed count needed to be revived before it could support another criminal proceeding, the law that revived it must be identified,” he said.
Beyond the issue of the quashed counts, Ifedi also challenged the Supreme Court’s treatment of Count 15, which later became Count 7 after the case was remitted to the Federal High Court for continuation.
He argued that the statutory foundation of the count had been changed in the Supreme Court’s judgment, raising a separate question about the extent of the court’s authority to alter the legal basis of a criminal charge.
According to Ifedi, Count 15 before the Supreme Court concerned the alleged importation and concealment of a radio transmitter. He said the count had originally been pleaded under Section 47(2)(a) of the Criminal Code Act, CAP C45, Laws of the Federation of Nigeria 2004.
He said Justice Lawal Garba examined the statutory citation and concluded that CAP C45 referred to the Customs and Excise Management Act, rather than the Criminal Code Act. According to Ifedi, the judge then held that the facts contained in the count disclosed an offence under Section 47(2)(a) of the Customs and Excise Management Act, CAP C45.
Ifedi said the Supreme Court treated the reference to the Criminal Code Act as a “mere mistake” and supplied the Customs and Excise Management Act as the statutory foundation for the count.
He argued that this amounted to taking a criminal accusation that had been presented under one statute and allowing it to proceed under another statutory framework.
“Before the Supreme Court, the accusation was Count 15. It concerned the alleged importation and concealment of a radio transmitter. It was pleaded under Section 47(2)(a) of Criminal Code Act, CAP C45 LFN 2004,” he said.
“Lawal Garba JSC examined that citation. At page 32 of the remittal judgment, he held that Cap C45 was CEMA, not the Criminal Code Act. He then held that the facts disclosed an offence under Section 47(2)(a) of CEMA Cap C45.”
According to Ifedi, the Supreme Court’s treatment of the statutory reference created an important legal question over whether the court could correct or replace the legal foundation of a criminal charge in that manner.
“He described the reference to the Criminal Code as a ‘mere mistake’. The court therefore supplied CEMA as the statutory foundation of the count and treated Count 15 as recognised, cognisable and grounded in that law,” Ifedi said.
He argued that the Supreme Court was acting as an adjudicating court rather than as the prosecuting authority and therefore questioned the legal basis for changing the statute under which the accusation had been presented.
“The question is straightforward: What law authorised the Supreme Court to do that? What law authorised the court to take a count pleaded under one Act and send it to trial under another?” he asked.
Ifedi maintained that the Supreme Court, like every other court, must operate within the limits established by law and that the authority to determine an appeal should not automatically be interpreted as authority to create a new statutory foundation for a criminal charge.
“The Supreme Court is not the prosecutor. It is a neutral arbiter. If the law gives it the power to substitute the statutory foundation of a criminal accusation, show us the law,” he said.
His intervention therefore focuses on two related questions: how charges previously quashed by the Court of Appeal became available for further proceedings after the Supreme Court’s judgment, and what legal authority permitted the statutory foundation of Count 15, later renumbered Count 7, to be altered.
Ifedi said the issues should be answered through identifiable provisions of law rather than through judicial policy, procedural developments or assumptions arising from the Supreme Court’s position in the judicial hierarchy. He maintained that the existence of jurisdiction over a category of offences was distinct from the existence of a valid and legally recognisable charge against a particular defendant.
The lawyer also argued that the questions were not resolved by Justice Nyako’s later recusal because recusal was essentially procedural, while the validity and existence of the charges raised a more fundamental jurisdictional issue.
He further alleged that the Supreme Court’s approach in Kanu’s case was inconsistent with its earlier position in Onu Okafor v The State (1976), which he said involved the apex court refusing a retrial because the original proceeding lacked the legal authority required to commence it.
Ifedi said that precedent raised another question about whether the legal basis for proceedings could be supplied after the fact when the original foundation of an accusation had been found deficient.
While criticising what he described as the Supreme Court’s departure from the principles he cited, Ifedi said the central issue should remain whether the law authorised each step taken in Kanu’s prosecution.
He concluded by insisting that the authority of the Supreme Court must ultimately derive from legislation and established legal principles, rather than from its position as the country’s highest judicial institution.
For Ifedi, the continuing trial of Kanu therefore presents questions that go beyond the procedural consequences of an appellate judgment or a change of judge. He argues that before any person can be tried on a particular criminal count, that accusation must have a valid legal foundation, and where a previously quashed count is revived or its statutory basis is changed, the legal authority for doing so must be clearly established.
Lawyer Questions Supreme Court Over Revival of Quashed Charges in Nnamdi Kanu Trial
