The appeal filed by Nnamdi Kanu against his conviction and life sentence is now being argued, by his defence, as a jurisdiction case rather than a dispute about the evidence. Onyedikachi Ifedi, a member of the Mazi Nnamdi Global Legal Consortium, said this week that the Federal Government had filed no brief within the time allowed and had therefore abandoned the appeal. The prosecution has not, in the material considered here, accepted that description. What the defence says the Court of Appeal must decide first is whether the Federal High Court was ever lawfully seized of the case.
Kanu, leader of the proscribed Indigenous People of Biafra, was convicted by Justice James Omotosho on 20 November 2025. The judgement rested on evidence taken after a fresh plea. On 21 March 2025 the Federal Government arraigned him again on seven terrorism counts. He pleaded not guilty. Justice Omotosho renumbered the surviving counts and the prosecution told the court that it was ready to conduct a fresh trial, in line with the order of the Supreme Court. The suit number remained FHC/ABJ/CR/383/2015.
The charge named the Terrorism (Prevention) (Amendment) Act 2013. That Act amended the Terrorism (Prevention) Act 2011. On 12 May 2022 the Terrorism (Prevention and Prohibition) Act 2022 came into force and repealed the 2011 Act. The defence says that, by the date of the fresh plea, the statute written on the charge was no longer a subsisting law. Ifedi’s case is that a judge must have a valid criminal process before him before he takes a plea, receives evidence or convicts. Later acts, he says, cannot create a jurisdiction that was absent at the start.
What the defence says Justice Omotosho ought to have done is narrow. Before the plea, he ought to have determined whether the statutes stated in the charge were valid and subsisting laws, and whether they defined the offences and prescribed the penalties. That duty is tied to section 122 of the Evidence Act, which requires a court to take judicial notice of written law, including a repeal, and to section 36(12) of the Constitution, which forbids conviction for an offence that is not defined, and whose penalty is not prescribed, in a written law in force. The defence also says the Supreme Court, when it restored the prosecution in December 2023, had directed the trial court to examine that statutory foundation. There is, on the defence account, no such determination on the record.
The reason they call the law the wrong law is the repeal. The alleged conduct is placed between 2018 and 2021, when the 2013 Act was in force. The plea and the trial before Justice Omotosho took place in 2025, after repeal. A repealed Act, they argue, is not a written law in force on the day of conviction. Some counts are also said to have rested on the Customs and Excise Management Act, later repealed. In either case the objection is the same. The instrument of trial must be a living statute.
What would have placed the trial on the law they regard as correct is equally specific. The prosecution would have had to amend or reframe the counts so that they cited the Terrorism (Prevention and Prohibition) Act 2022, the Act in force in 2025, under its corresponding provisions. That law would have had to be put to Kanu in the charge, not introduced for the first time in the judgement. The judge would then have recorded that he had taken notice of the repeal and identified the written law that created each offence and its penalty, and only then taken the plea. Some defence lawyers add that, even if liability could be saved, sentence ought to have followed the 2022 Act where it was the more lenient law.
The obvious answer from the other side is sections 97 and 98. Section 98(1) repeals the 2011 Act. Section 98(3) then provides that any proceeding, prosecution, charge or cause of action pending or existing immediately before the commencement of the 2022 Act may be continued or commenced, and any determination enforced, as if that Act had not been made. Sections 97 and 98(2) are cast differently. They provide that ongoing cases in the courts, if in force at commencement, continue and have effect as if made, issued, given or done under the corresponding provisions of the 2022 Act.
A fresh plea does not automatically take the case outside section 98(3). That clause is triggered by a charge that was already pending on 12 May 2022, not by the identity of the judge who later hears the witnesses. Trial de novo, after a judge leaves a case, ordinarily wipes the earlier evidence. It does not, in ordinary practice, wipe the charge or turn the cause into a prosecution begun after repeal. The seven counts read in March 2025 were the surviving counts from the older charge, and the suit was still the 2015 case. On that reading, new evidence in 2025 can still be evidence in a saved prosecution.
The fresh plea does, however, remove one shelter. Justice Omotosho did not adopt findings or a record from the earlier proceedings before Justice Binta Nyako. The judgement was built on evidence taken after 21 March 2025. He cannot be said to have merely continued a hearing already conducted under a living law. On the day he took the plea, the charge before him had to be a lawful charge.
That is where sections 97 and 98(2) become awkward for the prosecution. They point the saved case onto the corresponding provisions of the 2022 Act. They do not say that the repealed Act remains the law written on the charge. If the document read in 2025 still cited only the 2013 Act, the defence will say the prosecution saved the file and failed to carry the accusation onto the living statute. Section 98(3) can preserve a pending charge. It is much harder to read it as authority to keep trying a man, years later, on the text of an Act the National Assembly has repealed, and to do so in a hearing that started again from a new plea.
The competing readings are therefore plain. One is that the old charge was pending before repeal, that section 98(3) keeps it alive as if the 2022 Act had not been made, and that a fresh plea before a new judge does not break that chain. The other is that a plea taken in 2025 required a written law then in force, that sections 97 and 98(2) required the counts to be given effect under the 2022 Act, and that a conviction built only on evidence after that plea cannot cure a charge that still named a repealed statute.
The Court of Appeal has not decided which reading is correct. Until it does, the legal argument is not whether the witnesses were believed. It is whether, on 21 March 2025, there was a valid and subsisting law on the face of the charge.
