Validity of Proceedings Commenced BeforeAmendment of Operative Criminal Law

 In the Federal High Court 

In the Abuja Judicial Division

Holden at Abuja

On Thursday, the 20th day of November, 2025

Before His Lordship

Honourable Justice J. K. Omotosho 

Judge, Federal High Court

FHC/ABJ/CR/383/2015

Between

FEDERAL REPUBLIC OF NIGERIA       COMPLAINANT

       And

NNAMDI KANU       DEFENDANT

Facts

The Defendant was arraigned before the Federal High Court, Abuja Judicial Division, on a 7-count charge, including committing acts of terrorism and incitement punishable under Section 1(2)(b), 1(2)(h) and Section 1(2)(f) of the Terrorism Prevention (Amendment) Act 2013; and being a member of a proscribed organisation contrary to Section 16 of the Terrorism Prevention (Amendment Act).

The case of the Prosecution was that, the Defendant had committed acts of terrorism against the Federal Republic of Nigeria which included: making broadcasts received and heard in Nigeria with the intent to intimidate the population, and making death threats; inciting members of the public to kill security personnel and their family members in Nigeria; mandating a sit-at-home order in the Eastern States of Nigeria with death threats at anyone who flouted the order; and directing members of Indigenous People of Biafra (IPOB) to manufacture bombs. 

The prosecution called five witnesses and tendered 34 exhibits, in proof of its case. The Defendant refused to open his defence, following which the court foreclosed him and ordered filing of final addresses. However, the Defendant had filed a Notice of Preliminary Objection dated and filed 16th October, 2025, challenging the competence of his trial. The Defendant subsequently filed a Motion on Notice/Comprehensive written address on the non-existence of any cognisable charge on 30th October, 2025.

Issues for Determination

From the Defendant’s notice of preliminary objection and the written addresses before it, the Court formulated the following issues:

1. Whether the Defendant was denied his right to fair hearing in the circumstances of the case.

2. Whether the claim of extraordinary rendition of the Defendant from Kenya invalidates his trial in the case.

3. Whether the provisions under which the Defendant is being tried are repealed laws and inoperative.

4. Whether the prosecution has established the charge against the Defendant beyond reasonable doubt. 

Judgement

On issue 1, the Court held that a Defendant’s right to defend himself as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria is a right that cannot be taken from a Defendant, except where he expressly or by conduct waives it, and the failure by a Defendant to use the opportunity granted to him to defend himself will be entirely the Defendant’s fault, and he cannot complain thereafter. 

The Court held that the Defendant was given ample opportunity to defend the charge against him, in line with the principle of fair hearing. The Court held that it availed the Defendant with adequate time and facility which included, vacating the court room to enable the Defendant and his former Counsel conduct pre-trial meetings in preparation for his defence. The Court held that its foreclosure of the defence following the Defendant’s failure to put in his defence after several opportunities were availed to him, cannot therefore, be said to amount to a breach of fair hearing. 

On the 2nd second issue, the Court held that while illegal rendition may seem illegal on the face of it, the way and manner in which the attendance of a Defendant is secured does not vitiate his trial. The Court relied on the Supreme Court’s decision in FRN v KANU SC/CR/1361/2022 delivered on 15th December, 2023 that the procedure used in bringing or producing the Defendant before the trial court for the trial of the offences in respect of which he was validly charged after jumping the bail granted to him, cannot reasonably be said to deprive the trial court of the statutory jurisdiction to proceed with the trial.

The Court found that notwithstanding the legality or otherwise of how the Defendant was brought back from Kenya, it does not invalidate his trial particularly since trial had started since 2015 before the Defendant jumped bail and before his rendition in 2021.

On the 3rd issue, the Court relied on the decision of the Court of Appeal in IGP v OGUNDIMU & ORS (2022) LPELR-57151 (CA) that “an accused person can only be charged under the law that creates the offence, and such law must be in force at the time it was committed”.

The Court held that the charge against the Defendant were as to offences allegedly committed by the Defendant between 2018 and 2021, and as at when the charge was filed, the operational Terrorism Act in Nigeria was the Terrorism Prevention (Amendment) Act 2013 (“TPA 2013”) which amended the Terrorism Prevention Act of 2011 (TPA 2011). 

The Court held further that Section 98 of the Terrorism Prevention (Amendment) Act 2022 (“TPA 2022”) which repealed TPA 2011 in fact provides in subsection (3) thereto that the commencement of TPA 2022 does not invalidate criminal proceedings commenced under any repealed Act which are pending before the commencement of the TPA 2022, and such proceedings may be continued as if TPA 2022 had not been made. The Court held that the import of this provision is that the enactment of the Terrorism Prevention Amendment Act 2022 does not vitiate the trial of the Defendant rightly commenced under Terrorism Prevention Amendment 2013, being the law in force when the offences were committed and when the charge was filed.

In determining the substantive issue in issue 4, the Court held that the Defendant’s deliberate failure to  call any witness or present evidence in rebuttal of the Prosecution’s case implies that he admits the case of the Prosecution, and the court is entitled to rely on the uncontroverted evidence led by the Prosecution.

On counts 1 and 2 that the Defendant made broadcasts with intent to intimidate the Nigerian population and issued a sit-at-home order with death threats in furtherance of acts of terrorism, the Court held that by Section 1(2)(b) of the Terrorism Prevention (Amendment) Act 2013, the essential ingredient that must be established against a Defendant is that the Defendant has willingly/knowingly, either directly or indirectly, done an act preparatory or in furtherance of an act of terrorism.

The Court, placing reference on Section 1(3) of TPA 2013, held that an act of terrorism is any act of violence or threat of violence against members of the public intended to cause fear or put them in a state of fear, and intimidate them to adopt or abandon a particular view, policy or position, in pursuit of a political objective. 

The Court held that the Defendant in several of his broadcasts, made statements threatening harm to the Federal Government of Nigeria and the general Nigerian populace including his own people whom he claimed to be fighting for. The Court referred to Exhibit PWW which contained amongst other broadcasts, an interview with Sahara TV wherein the Defendant threatened that “if they do not give us Biafra, there will be nothing living in the very zoo called Nigeria, nothing will survive there”, and similar threatening statements made by the Defendant at a World Igbo Conference in Los Angeles where he also requested for guns and bullets.

The Court held that from the uncontroverted evidence led the Prosecution, it was clear that the Defendant by these threats of violence, committed acts preparatory to and in furtherance of a terrorist act.

The Court held further that by Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999, every citizen of Nigeria is entitled to the right to personal liberty and freedom of movement, except in the cases permitted by law. The Court held that the only person entitled to restrict movement of persons in Nigeria, is the President under his emergency powers under Section 305 of the Constitution which empowers the President to impose a curfew in areas where there is crisis or disaster. The Court found that the act of the Defendant arrogating powers to himself to declare sit-at-home in the South Eastern States with threats of violence as proven by the Prosecution, is an unconstitutional act which is subversive and amounts to an act of terrorism.

On count 3, the Court held that for the Prosecution to succeed in a charge brought under Section 16 of the TPA 2013, it must prove that the accused person is or professes to be a member of a terrorist group, and that the terrorist group has been proscribed as at the time the Defendant professed its membership. The Court held that the uncontroverted evidence led by the Prosecution, showed that the Defendant is not just a member, but also the leader of IPOB with the influence of commanding coordinators of the group. The Court referred to the broadcasts contained in Exhibit PWW in which the Defendant admitted being the leader of IPOB and a broadcast made on 12th December, 2020, wherein the Defendant inaugurated the Eastern Security Network, the armed wing of IPOB.

The Court also held that it was also established that IPOB was a proscribed organisation having been so proscribed by the order of His Lordship, Nyako J. in Suit No. FHC/ABJ/CS/871/2017 on 20th September, 2017 which crystallised into the Terrorism Prevention (Proscription Order) Notice 2017 in the Federal Republic of Nigeria Official Gazette No. 99 in Volume 104 dated 20th September, 2017 tendered as Exhibit PWJ.

On counts 4 and 5, that the Defendant incited members of the Nigerian Public to hunt and kill Nigerian Police personnel and their family members, the Court held that by Section 1(2)(h) of TPA 2013 under which the Defendant was charged, for a person to be guilty of an offence under the said section, the prosecution must establish beyond reasonable doubt that the Defendant willingly, whether directly or indirectly, incited, promised or induced other persons by any means whatsoever to commit a terrorist act. The Court referred to KAZA v STATE (2008) LPELR-1683 (SC) in which the Supreme Court defined incitement as an act of instigating or making someone to feel brave or confident to behave unlawfully, by giving approval in support of a crime. 

The Court held that the Defendant’s incitement of people to violence was very clear from his broadcasts, particularly that of 20th and 21st October, 2020 as contained on Exhibit PWW, and not only did the Defendant incite the public to kill security personnel and their family members, he taught them how to build improvised bombs and also incited them to destroy all properties of the Federal Government during the EndSARS protest.

The Court referred to Exhibit PWD2A which was a compilation of death reports and certificates of death of 128 Police officers, 37 military officers and 10 other security operatives killed during the EndSARS protest. The Court held that while it was mindful not to attribute all the happenings during the EndSARS protest to the Defendant, there is no doubt that the incitement by the Defendant contributed largely to the killing of the security operatives and destruction of public properties. 

The Court held that from the avalanche of evidence before it, the prosecution had successfully discharged its burden of proving counts 4 and 5 beyond reasonable doubt.

On count 6, the Court held that by Section 1(2)(f) of the TPA 2013 under which the Defendant was charged, any person who assists, facilitates or directs the activities of persons of organisation engaged in an act of terrorism, is guilty of an offence under the Act. The Court held that the Prosecution led uncontroverted evidence, establishing that the Defendant had directed members of IPOB, a terrorist organisation to build bombs and improvised explosives such as a Molotov cocktail for use in attacking security operatives.

On count 7, the Court held that by Section 47(2)(a) of the Customs and Excise Management Act, LFN 2004, anyone who imports any goods concealed in a container holding goods of different description is guilty of an offence under the Act. The Court held the evidence led by the Prosecution through PW4, established that the Defendant smuggled a transmitter into the country in a container of household items, without declaring the same to the customs. 

The Court convicted the Defendant on all the counts and sentenced him to life imprisonment on counts 1, 2, 4, 5 and 6, a term of 20 years imprisonment without option of fine on count 3, and 5 years imprisonment without the option of fine on count 7, to run concurrently.

Representation

Adegboyega Awomolo,  SAN with others for the Prosecution.

Nnamdi Kanu – the Defendant for himself.  

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)