A lawyer, Onyedikachi Ifedi, has questioned the legal basis of the Supreme Court’s decision to revive charges previously quashed by the Court of Appeal in the trial of the leader of the Indigenous People of Biafra, Nnamdi Kanu.
Ifedi, a member of the Mazi Nnamdi Kanu Global Legal Consortium, also challenged the apex court’s decision to alter the statutory foundation of one of the charges against the detained IPOB leader.
The lawyer raised the questions in a statement made available to journalists in Umuahia, Abia State, arguing that the Supreme Court’s appellate jurisdiction did not automatically give it the power to resurrect criminal charges that had already been quashed.
The Court of Appeal had, in its October 13, 2022 judgment, discharged and acquitted Kanu on eight counts—6, 7, 8, 9, 10, 11, 12 and 14—of the 15-count terrorism charge.
The appellate court held that the affected counts did not disclose offences against Kanu, while retaining counts 1, 2, 3, 4, 5, 13 and 15.
However, the Supreme Court, in its December 15, 2023 judgment, set aside the Court of Appeal’s decision and remitted Kanu’s trial to the Federal High Court for continuation.
It was this development that Ifedi challenged, asking what specific law empowered the Supreme Court to revive the counts that had been quashed by the Court of Appeal.
“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?” he asked.
Ifedi argued that although the Supreme Court possessed appellate jurisdiction, such jurisdiction did not, by itself, confer authority to resurrect a quashed charge or alter the legal foundation of a criminal accusation.
“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.
He challenged the apex court to identify the legal provision that authorised the actions.
“If the law permits either act, show us the law,” he said, stressing that the Supreme Court, despite being the highest court in the judicial hierarchy, remained subject to the law.
Ifedi also rejected arguments that the Supreme Court could rely on policy considerations to justify its actions in the case.
“Some describe the Supreme Court as a ‘court of policy’. That cannot mean policy gives a court powers which the law has withheld.
Policy cannot revive a quashed charge. Policy cannot replace a repealed statute. Policy cannot confer criminal jurisdiction,” he said.
According to him, the judiciary could interpret and develop existing laws but could not effectively create criminal law to achieve a desired 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 added.
The lawyer also addressed the subsequent recusal of Justice Binta Nyako from Kanu’s trial and the fresh plea entered before another judge.
He acknowledged that the recusal could have necessitated proceedings before a new judge and a fresh plea but argued that it did not resolve the fundamental question concerning the legal status of the charges.
“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?” Ifedi asked.
He argued that because the affected counts had been quashed by the Court of Appeal, there was a need to identify the legal basis upon which they became valid charges again before being presented to a new judge.
According to him, the distinction was important because a change of judge was procedural, while the existence of a valid criminal charge was jurisdictional.
“A change of judge is procedural. The existence of a criminal charge is jurisdictional. One cannot be used to answer the other,” he said.
Ifedi further argued that the Federal High Court’s general jurisdiction over terrorism offences did not automatically establish the existence of a valid charge against Kanu.
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“There must first be a legally cognisable accusation,” he said.
He cited a statement attributed to Justice Lawal Garba that “a court cannot confer jurisdiction where the law has not conferred it,” arguing that the principle should apply to every court, including the Supreme Court.
The lawyer also questioned the Supreme Court’s treatment of Count 15, which subsequently became Count 7 after the case was remitted to the Federal High Court.
According to Ifedi, the original Count 15 concerned the alleged importation and concealment of a radio transmitter and was 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, in the Supreme Court’s remittal judgment, examined the statutory citation and held that CAP C45 referred to the Customs and Excise Management Act rather than the Criminal Code Act.
According to Ifedi, the judge consequently treated the reference to the Criminal Code as a “mere mistake” and held that the facts disclosed an offence under Section 47(2)(a) of the Customs and Excise Management Act.
The lawyer questioned whether the Supreme Court had the authority to substitute the statutory basis of a criminal charge in that manner.
“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 should remain a neutral arbiter rather than assume the role of a prosecutor by supplying or replacing the legal foundation of an accusation.
“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.
He further alleged that the Supreme Court’s handling of Kanu’s case was inconsistent with its earlier decision in Onu Okafor v The State (1976), where the apex court reportedly refused a retrial on the basis that the original proceedings lacked the legal authority required to commence them.
Ifedi’s intervention adds to the continuing legal debate surrounding Kanu’s prosecution, particularly the scope of appellate powers, the status of charges quashed by an appellate court and the circumstances under which a criminal accusation can validly proceed after a change of judge.