By Johnbosco Agbakwuru
ABUJA– A member of Mazi Nnamdi Kanu’s defence team has alleged that Justice James Omotosho of the Federal High Court selectively applied Section 122 of the Evidence Act in the trial of the detained Indigenous People of Biafra, IPOB leader.
Lawyer Onyedikachi Ifedi made the allegation in the second part of his legal analysis of Kanu’s trial, in which he also accused the court of disregarding binding Supreme Court precedent and failing to properly consider Kanu’s application for judicial notice while he was unrepresented.
Ifedi stated that Justice Omotosho’s judgment showed the judge was fully aware of the mandatory requirements under Section 122 of the Evidence Act 2011, and had applied the provision when it supported the prosecution’s case.
He, however, alleged that the same provision was not applied when Kanu invoked it to challenge the legal foundation of the charges against him.
Ifedi cited page 34 of the certified judgment delivered by Justice Omotosho on November 20, 2025, in Suit No. FHC/ABJ/CR/383/2015, Federal Republic of Nigeria v. Mazi Nnamdi Kanu.
The judge was quoted as stating: “This Court is bound to take judicial notice of the laws of the land as well as gazetted orders and rulings of courts of coordinate jurisdiction by virtue of Section 122 of the Evidence Act, 2011.”
Justice Omotosho subsequently stated that the court took judicial notice of an order delivered by Justice Kafarati in Suit No. FHC/ABJ/CS/878/2017, Attorney General of the Federation v. Indigenous People of Biafra, which proscribed Kanu’s organisation as a terrorist group.
Ifedi argued that the court’s statement demonstrated that Justice Omotosho recognised Section 122 as imposing a mandatory duty on the court.
He alleged, however, that the judge adopted a different approach when Kanu invoked the same provision in relation to the laws forming the basis of the charges against him.
Section 122(2)(a) of the Evidence Act provides that “the court shall take judicial notice of—(a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria.”
The lawyer argued that the use of the word “shall” made the provision mandatory rather than discretionary.
He further cited the Supreme Court decision in INEC v. Etene, arguing that the apex court had established that “shall” in a statutory command imposes an obligation rather than conferring a discretion on the court.
Ifedi also referred to the Supreme Court’s judgment in the case involving Kanu, marked SC/CR/1361/2022 and delivered on December 15, 2023.
He argued that the Supreme Court had reaffirmed the duty of Nigerian courts to take judicial notice of primary statutory enactments, including repealed laws.
According to him, Justice Omotosho was bound by the Supreme Court’s decision because the matter had been remitted to the Federal High Court.
Ifedi alleged that the judge’s failure to apply the principle when it was raised by Kanu amounted to a disregard of binding precedent.
The lawyer also focused on proceedings of November 4 and 5, 2025, when he said Kanu was without counsel.
He cited page 973 of the trial record as containing Kanu’s request that the court take judicial notice of the repeal of the Terrorism Prevention (Amendment) Act 2013 and what he described as the non-existence of Criminal Code Act C-45.
Kanu was quoted as saying: “I plead with you … to please take judicial notice of the repeal of TPAA 2013 and the non-existence of criminal code act C-45.”
He also quoted Kanu as saying on November 5: “No trial can be conducted on a dead law; it must be on a subsisting law.”
“The onus was on the prosecution to migrate my case to map it from 2013 to 2022,” Kanu was further quoted as saying.
Ifedi argued that Kanu had specifically invoked the statutory mechanism of judicial notice rather than merely making a general objection to the prosecution.
He alleged that instead of determining the application before proceeding with the trial, the court continued with the proceedings.
The lawyer also criticised the approach adopted by Justice Omotosho in the final judgment, particularly the use of the phrase “assuming without conceding” in dealing with the legal issues raised.
Ifedi argued that an assumption made in the final judgment could not retrospectively satisfy a statutory obligation that had allegedly been raised before the trial continued.
He maintained that judicial notice and an assumption were legally different concepts.
According to him, judicial notice involves a court recognising facts or law without requiring formal proof where the law permits or requires such notice, while an assumption does not amount to a determination that the relevant law existed or applied.
The lawyer further described the alleged failure to apply Section 122 as a matter capable of affecting the validity of the proceedings.
He argued that the alleged failure to follow the Evidence Act and binding Supreme Court precedent rendered the affected reasoning “per incuriam” and constituted a serious error of law.
Ifedi also accused the court of applying Section 122 differently depending on whether it benefited the prosecution or the defence.
He contrasted the court’s reliance on the 2017 proscription order with its alleged refusal to take judicial notice of the repeal of the laws cited by Kanu.
According to him, the prosecution-related application of Section 122 resulted in the court taking judicial notice of the proscription order, while Kanu’s application relating to the statutory provisions was allegedly refused during the proceedings and later addressed through an “assuming without conceding” approach in the judgment.
“Ifedi said the difference amounted to selective obedience to the Evidence Act and questioned whether the approach was consistent with neutral adjudication.
He concluded that Justice Omotosho knew about Section 122, expressly referred to it in his judgment and applied it in relation to the prosecution’s case, but allegedly failed to apply it when Kanu invoked the provision.
The lawyer said the alleged failure constituted a reversible error of law and argued that it affected the validity of Kanu’s conviction.
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