23/11/2025
"Fundamental errors of HON JUSTICE OMOTOSHO That might nullify MAZI NNAMDI KANU'S Trial by Chuks Nwachukwu.
The learned Hon Justice Omotosho made fundamental errors of law and procedure that their Lordships at the Court of Appeal and Supreme Court might find too embarrassing.
Firstly, he allowed a defendant facing the death sentence before him to defend himself without the assistance of counsel. I know that 99.9% of my colleagues would argue that Kanu had a choice of the best lawyers in town but chose to dismiss them and defend himself. I am accustomed to standing alone in my views and therefore not bothered.
Nigerian law, in my humble view, as settled by a line of decisions of the Supreme Court, with none to the contrary, is that a defendant or accused person facing a charge that carries the death penalty must not be allowed to defend himself or stand trial without the assistance of counsel. It does not matter that the defendant asked to defend himself. This is one instance where the right to defend oneself is suspended. It is like the right to plead guilty to a charge. It is suspended in a trial on a capital offence. Irrespective that the defendant pleaded guilty, the court must record a plea of not guilty. In the same vein, even where a defendant to a charge that carries the death penalty decides to conduct his defence by himself, the court must, on the record, nevertheless, assign counsel to him. I believe that the life sentence that the learned judge gave to Kanu in place of the death sentence was an attempt at a cover up when he realized his error. Forget about the apparent sermonizing.
The second error was that Kanu raised a fundamental preliminary objection to the jurisdiction of the court that the law under which he was charged did not exist because it had been repealed but the court chose to compel him to enter upon his defence without ruling on the objection. Kanu was clearly mistaken on the position of the law because although the law under which he was charged had been repealed, his trial under that law is saved in the new law. However, it was a fundamental objection that was rooted in section 36(8) and (12) of the Constitution and therefore went to the jurisdiction of the court. It was the duty of the court to satisfy itself and the defendant that it had jurisdiction before proceeding further in the matter. The Hon Justice could have dismissed the objection in two sentences by citing the relevant provisions of the law. He chose not to do so.
I know that there are many that will argue that the law gives to a judge the power to postpone consideration of a preliminary objection to the charge to the delivery of judgment. My view, which is supported by some authorities of the Supreme Court is that where the objection is fundamental in that it goes to the jurisdiction of the court, (distinguishable from an objection that complains about a mere irregularity that could be amended in the proceedings) it would be contrary to the fundamental right of the defendant to fair hearing for the court to proceed without making clear the basis of its jurisdiction to do so. Kanu was therefore right to refuse to enter upon his defence until his preliminary objection was ruled upon and determined.
Moreover, the position of the law that the learned judge relied upon only makes sense where the defendant proceeded with the trial after the learned judge refused to rule on his objection immediately. Kanu refused to proceed with the trial. It was the learned judge that foreclosed his defence by refusing to rule on his objection as he justifiably demanded. It was not for Kanu to presume the jurisdiction of the court until after his ordeal before it. It was for the court to make it clear and it failed to do so.
Thirdly, it appears that the court did not give Kanu the opportunity to reply to the final address of the prosecuting counsel (who was a Senior Advocate of Nigeria and Chairman Body of Benchers) on point of law. It seems awkward that we should be talking about a layman replying to the address of a Senior Advocate on point of law. However, that was the position that the learned Senior Advocate of Nigeria put himself when he allowed a trial in which the defendant faced the death penalty to proceed without the court assigning counsel to the defendant on the record. It is a fundamental point of fair hearing which could nullify the trial on appeal.
Finally, I am sad about the language of the learned judge in his judgment. I do not know how their Lordships upstairs will view it. In my humble view, it embodied prejudice against the defendant. The learned judge made unnecessary comments and rulings suggesting premeditation rather than judgment. Where did the issue of bombing the British Embassy come from? Why the order that Kanu could be kept in any correctional facility throughout the country? We now hear that he has been taken to Sokoto, the home of the Sokoto Caliphate, the headquarters of the Fulanis that he abused and insulted to no end. Was there a prior discussion with the learned judge by some interests who wanted him there? Were they privy to the judgment? Was it dictated by them? I thought that the position was that the Nigerian Correctional Services have the power to hold a prisoner in any correctional facility within the country as they decide having regard to all circumstances of the case. I know that the court could decide on the place of demand pending trial. I have never known the court to rule on the place where a convicted person could serve their prison term.
These matters might prove too embarrassing to their Lordships upstairs, so much so as to turn the crazy defence that Kanu gave himself around to be better than that that any lawyer could have given him.
The law could be an ass, indeed.
🖊️ Chuks Nwachukwu"
