Kanu’s “No Case” and A Judge’s Plea (2) – By Ehichioya Ezomon

By Ehichioya Ezomon

This court lacks jurisdiction to proceed on a charge that discloses no offence known to law. Jurisdiction is the lifeblood of adjudication; without it, all proceedings are void ab initio.
The defendant has been in custody since June 2021 without a valid charge – a continuing violation of his fundamental rights under Sections 35 and 36 CFRN.”
Following submission of prosecution’s lawyer, Adegboyega Awomolo (SAN), that he didn’t need to file a counter affidavit, but would “rely on the exhibit attached to the motion Kanu just moved,” Justice Omotosho, after reviewing the entire proceedings, adjourned for judgment on November 20.
Remarkably, Kanu’s case has spotlighted that though judges must “dispense justice to all manner of people without fear or favour or affection or ill-will,” they also strive to guide and assist litigants, as Justice Omotosho demonstrated during the accelerated hearing.
At separate proceedings, the judge pleaded with Kanu – who represented himself after he sacked his lawyers – to enter defence, and not rely on a dismissed “no case submission” that went up to the Supreme Court, which agreed that a “prima facie case” was made against him, and he should stand trial.
Spicing the proceedings with a biblical touch, the judge, on Tuesday, November 4, appealed to Kanu, “three times,” to enter defence, and yet, Kanu denied there’s law in Nigeria’s corpus to try or continue to detain him. (Reminds of Matthew 26:34, 75 when Peter, as Jesus Christ prophesied, denied Him three times before the cock crowed)
As reported by The Nation on November 5, the judge, ruling on Kanu’s decline to enter defence “for the last time,” turned to him in the dock, and said: “Just like I did the other time, I appeal to you, in the name of Almighty God, to get a legal expert that can put you through. When I said lawyer, it is not just a lawyer, but one that is conversant with criminal proceedings. In the name of Almighty God, you need to get a lawyer to put you through.
“The law has given you the opportunity to put in your defence. If you say you are not calling witnesses, the court cannot force you. My dear brother, I appeal to you, in the name of Almighty God, to get a lawyer, who is an expert in criminal law to put you through.”
Similarly on Friday, November 7, Justice Omotosho held that as it’s in the case in the Bible when God gave Adam the chance to explain why he ate the apple (forbidden fruit) (Genesis 2:16-17) he, as a Christian, had given Kanu the opportunity to defend himself, adding, “I have, on some occasions, appealed to him, in the name of God, and advised him to get the service of a lawyer knowledgeable in criminal procedure.”
Like the horse taken to the river but can’t be forced to drink, Justice Omotosho held that Kanu couldn’t complain of being denied the constitutional right to fair hearing since, “on his own volition, he failed to utilise the opportunity given him to defend himself,” adding he couldn’t also be compelled to utilise the opportunity for fair hearing, as “he is free to waive it if he chooses.”
“The defendant has been given ample opportunity to defend himself in this case. I hold that the defendant has waived his right to open his defence,” the judge said, and held that the two motions filed by Kanu, challenging the court’s jurisdiction, would be determined at the time of the final judgment.
Earlier, Kanu accused the court of “overlooking a Supreme Court judgment confirming the non-existence of Section 47 of the Criminal Code Act (CCA),” and that Section 36(12) of the Constitution prohibits being subjected to trial under a non-existent law.
I believe there are a few misconceptions here. There is no valid charge against me,” Kanu said, as he read from a Supreme Court judgment, and argued that the Terrorist Prevention Act 2013, under which he’s being tried, had been repealed.
Vowing not to return to detention, he said: “The fact that this court has refused to take judicial notice of a repealed law vitiates this trial. Why are you asking me to enter defence when there is no law under which I am being tried? I cannot go back to custody unless this court tells me under what law that I have been charged.”
Asking Kanu to read Section 36(12) of the Constitution to the hearing of the court, “which he did,” Justice Omotosho stated that the section “wasn’t applicable at the current stage of the case,” saying, “It is when you have entered your defence or rest your case on the prosecution’s case that, at the judgment stage, it would be determined whether or not you can be convicted.”
Noting that it’s the same Supreme Court – whose judgment Kanu quoted from to support his claim that “his trial was unlawful” – that sent the case back to the Federal High Court for the defendant to be tried on the remaining seven counts of terrorism, the judge said, “If the Supreme Court did not see the need for the defendant to be subjected to trial, it would not have sent the case back for trial.”
But Kanu’s unmoved, saying: “This is constructive denial of fair hearing. You cannot send me back to detention without telling me under which law I am being tried,” and informed the court that he’d filed a motion and an affidavit, which “raised threshold issues about the court’s jurisdiction to continue to hear the case.”
Prosecuting lawyer, Adegboyega Awomolo (SAN), faulted the “competence of the fresh documents,” and urged the court to “desist from further indulging the defendant,” and prayed it to deem the documents as Kanu’s “final written address,” and direct the parties to adopt their final addresses and adjourn for judgment.
It’s at this stage that Justice Omotosho, – “taking judicial notice” that Kanu isn’t a lawyer, and should be given “an opportunity to consult a lawyer and get necessary support” – pleaded with him, three times “in the name of Almighty God,” to seek expert legal advice.
All this seems academic now, as the die is cast for judgment, and Justice Omotosho either holds that the prosecution has proved, “beyond reasonable doubt,” its prima facie case against Nnamdi Kanu, and proceeds to convict and sentence him; or “finds merit” in his claim of “no case,” strikes out the suit, and sets him free. And the epic case is finally closed, hopefully, this Thursday!

•Mr Ezomon, Journalist and Media Consultant, writes from Lagos, Nigeria. Can be reached on X, Threads, Facebook, Instagram and WhatsApp @EhichioyaEzomon. Tel: 08033078357.