Convicted Without an Overt Act: The Catastrophic Pleading Failure at the Heart of Kanu’s Trial

• A legal commentary by Onyedikachi Ifedi, Esq., has challenged the handling of the trial of Indigenous People of Biafra (IPOB) leader Mazi Nnamdi Kanu.

KANU TRIAL: LAWYER QUESTIONS OMOTOSHO OVER ALLEGED FAILURE TO IDENTIFY PRIMARY TERRORIST ACT IN CHARGE SHEET

By Onyedikachi Ifedi, Esq.

PART 5 OF 150: OMOTOSHO’S FIFTH JURISDICTIONAL FAILURE — “IN FURTHERANCE OF WHAT?” THE CHARGE SHEET THAT NAMED NO TERRORIST ACT

A legal commentary by Onyedikachi Ifedi, Esq., has challenged the handling of the trial of Indigenous People of Biafra (IPOB) leader Mazi Nnamdi Kanu, questioning whether the charge sheet identified the specific primary terrorist act that his alleged broadcasts were said to have furthered.

The commentary argues that a defendant cannot be tried for a derivative offence without the prosecution identifying and pleading the underlying crime allegedly advanced by the defendant’s conduct.

It directly challenges Justice James Omotosho, the prosecution team and legal practitioners across Nigeria to identify a specific count in the charge sheet that names the distinct primary terrorist act allegedly furthered by Kanu’s broadcasts.

According to Ifedi, the issue is not the broadcast itself, a political statement or a threat, but the alleged primary terrorist act to which the prosecution’s claim of “furtherance” relates.

The lawyer argues that attaching the statutory description “in furtherance of an act of terrorism” to an alleged broadcast does not automatically transform the speech into a primary violent crime. He maintains that an indictment must disclose an offence known to law by stating its essential statutory ingredients.

Where a count alleges that conduct was carried out “in furtherance” of a crime without identifying the primary act allegedly advanced, the commentary contends that the charge fails to disclose an offence.

It further argues that a trial court has no jurisdiction to replace a defective charge sheet with assumptions introduced in its judgment after the trial.

CHARGE SHEET ALLEGEDLY FAILED TO IDENTIFY UNDERLYING TERRORIST ACT

Examining the official court record, the commentary focuses on the surviving counts—Counts 1, 2, 3, 4, 5, 8 and 15—and alleges that the indictment contains a fundamental pleading defect.

According to the analysis, Counts 1 and 2 accuse Kanu of making broadcasts “in furtherance of an act of terrorism against the Federal Republic of Nigeria.”

Counts 4 and 5 allegedly accuse him of making broadcasts “in furtherance of an act of terrorism” in which he purportedly incited members of the public to hunt and kill Nigerian security personnel and their families.

Count 8 allegedly accuses Kanu of making a broadcast “in furtherance of an act of terrorism” by directing members of IPOB to manufacture bombs.

The commentary argues that the central legal question is not whether a contemplated terrorist act was ultimately completed or whether the prosecution presented evidence at trial that an act occurred. Instead, it maintains that the issue concerns the wording of the indictment: what distinct terrorist act did the prosecution allege that the broadcasts furthered, and where was that act identified in the relevant counts?

Ifedi argues that the prosecution cannot answer this question merely by pointing to the broadcasts and claiming that the broadcasts themselves constituted the terrorist act. According to the lawyer, such an argument repeats the conduct attributed to the defendant without identifying the separate act to which the allegation of “furtherance” applies.

The commentary also refers to Section 1(2)(b) of the Terrorism Prevention (Amendment) Act 2013, which it acknowledges has been repealed and is inapplicable to the proceedings. Nevertheless, it argues that the provision’s statutory wording distinguishes between the defendant’s alleged conduct, such as a broadcast or preparatory act, and the primary terrorist act allegedly being prepared for or advanced.

According to the analysis, the prosecution was required, under the rules of criminal pleading, to identify the underlying act in Counts 1, 2, 4, 5 and 8.

It describes the broadcast as the alleged means and “in furtherance” as the alleged relationship between the conduct and the underlying act. The commentary maintains that merely repeating the expression “an act of terrorism” amounts to stating a legal conclusion rather than pleading the necessary factual ingredients.

LAWYER SAYS JUDGE CANNOT REWRITE DEFECTIVE CHARGE

The commentary cites John v. State (2019) LPELR-46936(SC) in support of its argument that a criminal charge must provide explicit written notice of every essential ingredient of the offence alleged.

Ifedi contends that a judge cannot assume the role of a prosecutor by supplying particulars omitted from the charge sheet.

The lawyer presents two possible scenarios concerning Justice Omotosho’s handling of the alleged defect. If the judge failed to notice that the charge sheet did not identify the primary terrorist act, the commentary argues that this would indicate a fundamental deficiency in criminal procedure. If he noticed the omission but proceeded to convict, it argues that he effectively attempted to reconstruct the prosecution’s case from the bench.

The analysis maintains that a trial judge must remain an impartial adjudicator and has no jurisdiction to create an unpleaded theory of criminal liability in a judgment to supply particulars that the prosecution failed to include in the indictment.

CONSTITUTIONAL QUESTIONS UNDER SECTIONS 36(6)(a) AND 36(12)

The lawyer identifies two provisions of Section 36 of the 1999 Constitution of Nigeria as central to the challenge.

Section 36(6)(a): Right to adequate notice of the accusation

The provision guarantees that a person charged with a criminal offence must be informed promptly and in detail of the nature and cause of the accusation.

The commentary argues that failing to identify the primary terrorist act allegedly furthered deprives the defendant of the factual particulars required to prepare a defence against the specific conduct said to have been advanced.

It further maintains that simply attaching a statutory citation to a count that lacks essential factual particulars does not satisfy the constitutional requirement for detailed notice of the accusation.

Section 36(12): The principle of legality

The commentary also invokes Section 36(12), which prohibits conviction for an act unless the act constitutes an offence defined by written law.

It cites Aoko v. Fagbemi (1961) 1 All NLR 400 in support of this principle.

According to the analysis, the alleged omission directly engages Section 36(6)(a), while the requirement that criminal liability be grounded in a legally defined offence raises questions under Section 36(12).

PREVIOUSLY STRUCK-OUT COUNTS RAISE QUESTIONS ABOUT SURVIVING CHARGES

The commentary recalls that on April 8, 2022, the trial court, presided over by Justice Binta Nyako, struck out Counts 6, 7, 9, 10, 11, 12, 13 and 14 for allegedly failing to disclose an offence as framed.

It also refers to FRN v. Kanu (SC/CR/1361/2022), stating that the Supreme Court, in a panel that included Justice Tijjani Abubakar, reviewed the history of the quashed counts.

The lawyer argues that criminal indictments relying on general broadcasting allegations without pleading the essential statutory ingredients fail to disclose an offence known to law.

According to the commentary, if the surviving counts contain the same structural defect—alleging derivative conduct without identifying the primary statutory act allegedly furthered—they are vulnerable to the same objection.

It further maintains that the survival of a count after an interlocutory objection does not automatically shield it from subsequent examination of whether the court has jurisdiction to proceed on the charge.

DEFENCE’S JURISDICTIONAL OBJECTIONS ALLEGEDLY LEFT UNRESOLVED

The commentary states that the defence raised preliminary objections challenging the competence of the charge sheet on the grounds that it failed to plead the essential statutory ingredients of the offences charged.

According to Ifedi, Justice Omotosho reserved the objections for determination in the final judgment but subsequently failed to resolve them.

The lawyer relies on Madukolu v. Nkemdilim (1962) 2 SCNLR 341, a case cited for the principle that a court’s authority to adjudicate depends on the fulfilment of fundamental conditions of jurisdiction.

The commentary argues that where an indictment fails to disclose an offence known to law because essential ingredients are missing, the defect goes to the court’s subject-matter jurisdiction.

It therefore contends that a court cannot disregard a properly raised jurisdictional objection to an allegedly defective charge sheet and proceed to impose criminal liability without first resolving the issue.

LAWYER ARGUES THAT THE TRIAL WAS DEFECTIVE FROM THE OUTSET

In what the commentary describes as the central issue in the case, Ifedi argues that the conviction followed a terrorism charge sheet that allegedly failed to identify an overt primary terrorist act.

The analysis sets out three propositions underpinning its position.

First, it argues that where essential ingredients are absent, the charge fails to disclose an offence, and a court cannot lawfully convict on an indictment that omits the primary act required by the applicable statutory framework.

Second, it contends that speech cannot automatically constitute a self-subsisting terrorist act under Section 1(2)(b) of the Terrorism Prevention (Amendment) Act 2013 merely because a broadcast is alleged to have been made “in furtherance of an act of terrorism” without identifying the underlying act.

Third, it argues that a charge that fails to disclose an offence raises a jurisdictional problem under Madukolu v. Nkemdilim and the constitutional guarantee of adequate notice under Section 36(6)(a).

On this basis, the commentary maintains that the alleged omission was not merely a procedural irregularity but a fundamental defect that, in its view, undermined the trial from the outset.

It further argues that a court cannot repair an unparticularised indictment by substituting assumptions made after the trial for statutory ingredients that were not pleaded by the prosecution.

CONCLUSION: “FURTHERANCE OF WHAT?”

Concluding the commentary, Onyedikachi Ifedi, Esq., argues that the validity of a criminal indictment must be assessed by examining the allegations actually stated within the four corners of the charge sheet.

He calls on Justice Omotosho and the prosecution to identify the primary terrorist act allegedly advanced by Kanu’s broadcasts, plead the essential ingredients of the offences charged, disclose the factual basis of the accusations and determine the defence’s jurisdictional objections.

The commentary closes with a direct challenge:

“FURTHERANCE OF WHAT? NAME ONE PRIMARY TERRORIST ACT. PLEAD THE INGREDIENTS. DISCLOSE THE OFFENCE. DETERMINE THE OBJECTIONS. SHOW US THE LAW.”

The arguments and conclusions in this report are those advanced in the legal commentary by Onyedikachi Ifedi, Esq. They are presented as the author’s legal position and have not been independently established here as findings of a court. The report does not independently verify the cited court records, the precise wording of the counts or the status of the objections described.