On 21 March 2025, the Federal High Court in Abuja delivered judgment in FRN v. Nnamdi Kanu (FHC/ABJ/CR/383/15). What should have been a routine criminal determination instead revealed a disturbing breakdown in judicial logic and constitutional discipline. A close reading of the Certified True Copies (CTCs) of the proceedings and judgment shows that Justice J. K. Omotosho anchored a conviction on a statute that had already been repealed, while selectively misapplying a provision of the replacement law—Section 98(3) of the Terrorism (Prevention and Prohibition) Act, 2022 (TPPA).
The documentary record is unambiguous. The statutory framework is equally clear. Yet the judgment charts a path entirely divorced from both.
1. A Procedurally Neat Trial Built on a Substantive Void
The record of proceedings between pages 10 and 12 reveals a trial that appeared procedurally regular on its face. The original fifteen-count charge was trimmed to seven. Each count was read aloud by the registrar. The defendant sought clarification on Count One and thereafter entered pleas of “not guilty” to all charges.
However, beneath this surface compliance lay a fatal defect: the entire arraignment and plea were conducted under the Terrorism Prevention Act (TPAA), a statute that had been expressly repealed by the National Assembly in 2022. By the time the court took fresh pleas in March 2025, that law no longer formed part of Nigeria’s legal system.
Procedure, no matter how tidy, cannot cure a jurisdictional vacuum.
2. The Iron Rule of Repeal—Acknowledged, Then Ignored
Justice Omotosho’s judgment itself acknowledges the settled legal position on repeal. The court cited established authorities such as Ogundimu, Daniel, and State v. Egigia, all of which affirm a basic principle of criminal jurisprudence: once a statute is repealed, it loses all legal force and cannot ground a trial or conviction. A repealed law, in the words of the authorities cited by the court, is a nullity.
The irony is striking. The judge underlined this very principle in his judgment—only to proceed in direct violation of it. What was recognized in theory was discarded in application.
3. Criminal Jurisdiction Has Two Pillars—Both Must Stand
Public commentary has attempted to blur a principle that is neither complex nor controversial. Criminal jurisdiction rests on two distinct and cumulative foundations:
First, the alleged offence must have been committed while the law creating it was in force.
Second, that same law must still be in force at the time of trial, plea, and conviction.
Both conditions must coexist. The collapse of either is fatal to jurisdiction.
There is no dispute that the TPAA was in force at various times between 2013 and 2022, when the alleged acts were said to have occurred. The first pillar is therefore not in issue. The second, however, had entirely crumbled by 2025. The TPAA had been repealed and replaced by the TPPA. The only operative statute at the time of trial was the TPPA.
A prosecution cannot stand on one pillar alone. A statute that no longer exists cannot sustain a living trial.
4. Section 98(3) and the Fiction of Pretended Non-Existence
The court’s reasoning hinged on a controversial interpretation of Section 98(3) of the TPPA, which preserves certain liabilities arising before repeal “as if this Act had not been enacted.” Justice Omotosho treated this phrase as authorisation to ignore the TPPA entirely and proceed as though the repealed TPAA still governed the field.
This construction is untenable.
If Section 98(3) truly mandated courts to disregard the TPPA, then the court itself had no basis for invoking Section 98(3) at all. One cannot rely on a statute in order to justify acting as though that same statute does not exist. Such reasoning collapses into self-contradiction.
What Section 98(3) preserves are liabilities—not repealed statutes. And the Act itself makes this plain. Section 97 of the TPPA provides the mechanism for continuity: existing liabilities are to be prosecuted under the new law, not under the repealed one. Section 97 is the legislative bridge designed to prevent injustice without resurrecting defunct statutes.
The court avoided this bridge altogether.
5. Judicial Notice Avoided: The Significance of “Assume Without Conceding”
Equally revealing was Justice Omotosho’s repeated use of the phrase “assume without conceding” in relation to the repeal of the TPAA. This linguistic manoeuvre served a strategic purpose. Under Section 122 of the Evidence Act, courts are mandated to take judicial notice of all Acts of the National Assembly. No proof is required; repeal is a legal fact.
Had the court taken judicial notice of the repeal as required, it would have been compelled to accept that the TPPA governed the proceedings. That recognition would have immediately invalidated the charges as framed and the plea as taken.
Instead, the court performed an exercise in semantic evasion—acknowledging repeal hypothetically while refusing to give it legal effect. This was not inadvertence. It was a calculated refusal to follow the mandatory consequences of the law.
6. Why Savings Clauses Cannot Resurrect Criminal Codes
Savings provisions are designed to preserve administrative continuity—subsidiary instruments, pending processes, and accrued liabilities. They do not revive repealed criminal statutes for purposes of fresh trials and convictions.
There is no Nigerian case law, no Commonwealth authority, and no comparative jurisprudence anywhere in the world that supports the use of a savings clause to uphold a conviction under a repealed criminal law. Notably, the judgment cited none—because none exist.
A savings clause may preserve a cause of action, but it cannot animate a statute Parliament has formally buried.
7. The Consequence: Jurisdiction Lost Beyond Repair
The legal outcome is stark and unavoidable:
- The alleged acts may have occurred while the TPAA was operative.
- By 2025, the TPAA had been repealed and extinguished.
- Without an extant charging statute, jurisdiction vanished.
- Section 98(3) cannot breathe life into a dead law.
- A conviction secured under the TPAA in 2025 is incurably void.
This is not a technical loophole. It is the structural foundation of criminal justice. To disregard it is not mere error—it is a deliberate judicial choice.
8. A Judgment Built on Legislative Ruins
By elevating Section 98(3) above Section 98(1), ignoring Section 97 entirely, and defying binding appellate authority, the judgment substitutes judicial preference for parliamentary command. It rests on a statute that the legislature repealed three years earlier.
If such reasoning is allowed to stand, repeal will cease to mean repeal. Courts will be free to exhume dead laws whenever expedient, and no citizen will be safe from retroactive or invented jurisdiction.
Conclusion: A Test for Nigeria’s Appellate Courts
This case has transcended the fate of one defendant. It now poses a fundamental question: does legislative repeal still carry legal finality in Nigeria?
Justice Omotosho’s judgment represents more than a misinterpretation of a statute. It is a direct challenge to constitutional order and the separation of powers. The Court of Appeal must intervene decisively.
If it does not, Nigeria will have announced—through judicial fiat—that laws, once repealed, may still rise from the grave.
And with that, the rule of law itself will stand on uncertain ground.
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