A lawyer and public interest analyst, Christopher Chidera, has described the conviction of Indigenous People of Biafra, IPOB, leader, Nnamdi Kanu, as a trap for the Court of Appeal.
Chidera's claim is coming amid the controversy over the failure of the appellate court to list for hearing, the appeal filed by Kanu to challenge his conviction.
Also, the Nigerian government, which prosecuted Kanu on terrorism charges, is yet to file a response to the appeal, months after it was filed.
Reacting to the controversy on Wednesday, Chidera said the Court of Appeal is in a tight corner due to the implications of the judgment delivered by Justice James Omotosho of the Abuja Federal High Court in Kanu's trial.
Speaking of what he described as a 'fatal trap' confronting the Court of Appeal, the lawyer said, "Justice Omotosho has driven the appellate court into a trap with only two doors: Door A - Quash the conviction outright. Uphold Section 36(12) and acknowledge that a sentence passed under a dead law is an incurable nullity — exposing years of sloppy judicial shortcutting.
"Door B - Go on a search and rescue mission. Manufacture an "analogous" 2022 Act provision sua sponte on appeal to rescue the trial judge's ratio — violating Section 36(1) & (6)(a) fair hearing guarantees by convicting on appeal under a statute the appellant never defended against at trial.
"Worse still, the Court of Appeal cannot go roaming around the TPPA 2022 to perform a statutory duty that Justice Omotosho flatly refused to perform when Nnamdi Kanu explicitly pointed out Sections 97 and 98(2) to him in open court."
According to Chidera, "If the Court of Appeal holds that a trial judge can pronounce a sentence under a repealed statute — and hide behind a savings clause to ignore mandatory transition commands — then Section 36(12) of the Constitution is dead, and nullum crimen sine lege is a myth in Nigeria."
He added, "We challenge any pro-government analyst to produce one single case in Nigerian history where a conviction was upheld when the trial judge explicitly anchored the ratio decidendi and sentencing order directly on a repealed statute while an extant replacement sat unapplied on the shelf. They cannot. Without an active, extant written law at the foundation of the judgment, the conviction as entered is an absolute, incurable nullity."
Speaking further on the issues surrounding the unlisted appeal, the lawyer claimed that a quiet, systemic panic, caused by what he described as "sheer jurisprudential terror", is echoing through the corridors of the Court of Appeal and the Supreme Court.
"For decades, Nigerian courts have relied on a dangerous trick to paper over grave judicial errors: treating a conviction rendered directly under a repealed statute as if it were a mere clerical typo on a charge sheet.
"The trial court judgment in FRN v. Mazi Nnamdi Kanu (Suit No: FHC/ABJ/CR/383/2015), delivered by Justice James Omotosho, has laid bare this intellectual rot. By convicting and sentencing directly under the repealed Terrorism (Prevention) Act 2013 (TPA) while ignoring the extant Terrorism (Prevention and Prohibition) Act 2022 (TPPA), Justice Omotosho entered a conviction unsupported by a single precedent in Nigerian history. He simply disobeyed the law of the land—and now, the bench is terrified to confront the mess," he alleged.
Faulting Kanu's conviction, he declared, "Passing sentence under repealed sections of a dead law is an unconstitutional act born of a Lazarus syndrome — a delusion that judges can command dead laws to rise from the grave. A dead law cannot be resurrected by judicial fiat."
According to him, under Section 36(12) of the Constitution, "written law" means an active, subsisting Act in force on the date of conviction and sentencing.
That the 2013 TPA was once written law does not make it written law on judgment day, he stressed, adding that when Justice Omotosho passed sentence, he drew imprisonment authority exclusively from repealed penal sections, "handing down a sentence without a single subsisting written law prescribing that penalty on judgment day".
Chidera argued that by defying the mandatory transition commands in Sections 97 and 98(2), the court left the conviction floating in a constitutional vacuum.
Stating what he described as the Golden Rule, the lawyer said, "In every affirmed case in Nigerian history, extant law supplied the conviction and penalty; the repealed citation was pleading only. "Substantive equivalence" (that the conduct was wrong under both laws) satisfies moral intuition, not Section 36(12), which demands an active written law at conviction."
It will be recalled that IPOB has threatened a boycott of the 2027 election in the South-East if Kanu's appeal is not listed and heard.
Kanu's family, in the same vein, recently asked the British government to intervene in the matter by demanding the listing and hearing of the appeal.
Nnamdi Kanu's conviction has set a trap for Court of Appeal - Lawyer