How Omotosho Trashed Nyako’s Ruling to Validate a Black-Market Proscription – Ifedi

• Legal practitioner Onyedikachi Ifedi, Esq., has raised serious constitutional and judicial concerns over the September 2017 proscription of the Indigenous People of Biafra (IPOB).

Legal practitioner Onyedikachi Ifedi, Esq., has raised serious constitutional and judicial concerns over the September 2017 proscription of the Indigenous People of Biafra (IPOB), accusing Justice James Omotosho of relying on a defective ex parte court order to establish the organisation’s proscribed status during the trial of its leader, Mazi Nnamdi Kanu.

In Part 8 of his 150-part legal commentary titled “Omotosho’s Eighth Jurisdictional Failure — The Black-Market Proscription: How a Trial Judge Substituted ‘Judicial Notice’ for Proof Beyond Reasonable Doubt to Sanction a Constitutional Nullity,” Ifedi argued that the circumstances surrounding IPOB’s proscription exposed fundamental violations of constitutional fair hearing and the prosecution’s obligation to prove criminal allegations beyond reasonable doubt.

The legal practitioner maintained that the proscription order obtained through a secret ex parte proceeding became the foundation for the terrorism proceedings against Kanu and provided the basis for subsequent military and security operations against Biafran youths in the South-East.

He specifically linked the proscription to the military operations associated with Operation Python Dance II, which commenced in September 2017, arguing that the order became a state-backed instrument used to justify violence, extrajudicial killings and mass arrests across the region.

Ifedi insisted that the evidentiary foundation for declaring IPOB a terrorist organisation was fundamentally defective, stressing that Justice Abdul Adamu Kafarati’s ex parte order did not identify a single specific act of terrorism committed by IPOB, a proven casualty, a documented violent atrocity or forensic evidence establishing the organisation’s involvement in terrorism.

He argued that millions of people were effectively placed under a terrorist designation through an order obtained without notifying the affected organisation or giving it an opportunity to challenge the allegations.

Justice Binta Nyako’s March 1, 2017 Judgment and IPOB’s Legal Status

A major part of Ifedi’s argument centres on an earlier judicial decision delivered by Justice Binta Nyako of the Federal High Court, Abuja, on March 1, 2017.

At the time, Justice Nyako was presiding over the substantive criminal proceedings involving Mazi Nnamdi Kanu and three other defendants.

According to the legal practitioner, the court struck out six counts of the charge after the Federal Government failed to produce evidence establishing that IPOB was an unlawful or terrorist society.

Ifedi described the decision as a subsisting judicial determination that had significant legal consequences for subsequent attempts to establish IPOB’s alleged unlawful status.

He identified three major legal implications of the ruling.

First, the Federal Government presented no evidence sufficient to establish the allegation that IPOB was an unlawful society in the proceedings before Justice Nyako.

Second, the court made a judicial determination on the issue after hearing the parties in an open court proceeding.

Third, the Federal Government did not appeal the decision.

On this basis, Ifedi invoked the doctrine of issue estoppel, arguing that the government could not lawfully resurrect an allegation that had already been judicially determined by a competent court.

He maintained that the March 1, 2017 ruling was binding and should have been disclosed and considered before any subsequent judicial process was initiated to proscribe IPOB.

September 2017: The Ex Parte Proscription and Alleged Judicial Forum Shopping

Ifedi’s commentary identified September 2017 as the turning point in what he described as a deliberate attempt by the Federal Government to circumvent the earlier ruling of Justice Nyako.

He stated that after failing to establish IPOB’s unlawful status before Justice Nyako, the prosecution approached another courtroom within the same Federal High Court building and presented an ex parte application before Justice Abdul Adamu Kafarati.

The application resulted in the proscription of IPOB.

Ifedi described the process as judicial forum shopping, arguing that the Federal Government bypassed the judge handling the substantive criminal proceedings and approached another judge through a process that excluded IPOB from participation.

He further maintained that Justice Nyako’s subsisting March 1, 2017 ruling was deliberately concealed from Justice Kafarati during the application.

According to him, the failure to disclose the earlier judicial decision was a fundamental defect that undermined the integrity of the process through which the proscription order was obtained.

The legal practitioner argued that the ex parte procedure denied IPOB the opportunity to respond to the allegations against it, contrary to the constitutional guarantee of fair hearing under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

He described the process as a judicial ambush designed to manufacture a legal instrument after the Federal Government had failed to establish its allegations through an open court proceeding.

Court of Appeal Decision and the Pending Supreme Court Controversy

Ifedi also examined IPOB’s challenge to the September 2017 proscription order at the Court of Appeal.

He recalled that IPOB appealed the decision, but the appellate proceedings produced a controversial position on the applicability of constitutional fair hearing protections to the organisation.

According to the commentary, Barka Akawu, JCA, held that the protections guaranteed under Section 36 of the Constitution did not apply to IPOB in the circumstances of the proscription proceedings.

Ifedi described the position as a serious distortion of constitutional jurisprudence, arguing that the right to fair hearing is a fundamental constitutional protection that cannot be disregarded in proceedings affecting the rights and legal status of an organisation.

He stated that the Court of Appeal decision was subsequently challenged before the Supreme Court, where the controversy remained pending at the time of his commentary.

The legal practitioner further maintained that Justice Omotosho was aware of the judicial history surrounding IPOB’s proscription, including the pending Supreme Court controversy.

He questioned why the trial judge did not expressly reference or rely on the Court of Appeal decision in his own trial record, despite subsequently taking judicial notice of IPOB’s proscription.

For Ifedi, this raised a fundamental question about the legal basis upon which the trial court treated the proscription as an established fact in the criminal proceedings against Kanu.

Justice Omotosho’s Reliance on Judicial Notice

One of the central issues raised in Part 8 of the commentary is Justice Omotosho’s decision to take judicial notice of IPOB’s proscription.

Ifedi quoted the judge as stating:

“I hereby take judicial notice of the proscription of IPOB…”

The legal practitioner described the statement as a critical error, arguing that the judge used judicial notice to bypass the prosecution’s obligation to establish the relevant criminal allegations through proper evidence.

He specifically referred to Sections 122 and 124 of the Evidence Act 2011, which provide for matters that courts may take judicial notice of.

According to Ifedi, there is a fundamental legal distinction between taking judicial notice of the existence of a court order and accepting the truth of the allegations contained in that order.

He argued that recognising the existence of an order does not automatically establish that every allegation upon which the order was obtained is true.

The legal practitioner maintained that the prosecution remained obligated to prove the criminal allegations against Kanu beyond reasonable doubt, as required under Section 135 of the Evidence Act 2011.

He accused Justice Omotosho of replacing this strict evidentiary requirement with what he described as the arbitrary shortcut of judicial notice.

Ifedi further argued that the trial judge disregarded the earlier ruling of Justice Nyako, which he considered favourable to the defence, while relying on the ex parte order obtained by Justice Kafarati.

He described this approach as an improper elevation of a disputed proscription order over a subsisting judicial determination and the constitutional requirement of fair hearing.

The Constitutional Nullity: Madukolu v. Nkemdilim and Skenconsult Ltd v. Ukey

Ifedi grounded his constitutional argument in two landmark Supreme Court decisions: Madukolu v. Nkemdilim (1962) and Skenconsult Ltd v. Ukey (1981).

He maintained that these authorities establish the fundamental importance of jurisdiction and compliance with the constitutional requirements governing judicial proceedings.

According to the legal practitioner, a judicial decision reached in violation of the right to fair hearing under Section 36 of the 1999 Constitution is not merely defective or voidable but null and void ab initio.

He argued that the September 2017 ex parte proscription order was fundamentally compromised because IPOB was not given an opportunity to respond to the application and because the earlier ruling of Justice Nyako was not disclosed during the process.

Ifedi further maintained that the absence of documented acts of terrorism in the application reinforced the legal defects surrounding the order.

He described the alleged concealment of material judicial information, combined with the denial of fair hearing, as an incurable constitutional defect.

The legal practitioner argued that a trial court cannot transform an invalid judicial order into a valid evidentiary foundation simply by taking judicial notice of its existence.

He further maintained that relying on such an order in criminal proceedings raises fundamental questions about the jurisdictional foundation and legal validity of the resulting judgment.

Ifedi Accuses Omotosho of Building a Conviction on a Defective Proscription

In his concluding arguments, Ifedi accused Justice Omotosho of disregarding the legal implications of Justice Nyako’s March 1, 2017 ruling, failing to address the controversy surrounding the Court of Appeal decision and relying on the ex parte proscription order to establish IPOB’s status during Kanu’s trial.

He argued that the judge effectively bypassed the requirement of proof beyond reasonable doubt by using judicial notice to establish the organisation’s proscription.

The legal practitioner maintained that the Federal Government first failed to establish IPOB’s unlawful status in the open proceedings before Justice Nyako, subsequently obtained a proscription order through a secret ex parte application before Justice Kafarati, and later relied on that order in proceedings against Kanu.

He further connected the proscription to the violence, military operations, arbitrary arrests and killings that followed in the South-East, particularly during Operation Python Dance II in September 2017.

Ifedi insisted that the proscription order was a constitutional nullity, arguing that a judicial process conducted in violation of the fundamental right to fair hearing could not provide a legitimate foundation for criminal proceedings.

He also described the trial as tainted by what he characterised as judicial bias and a conviction-at-all-costs mentality.

The legal practitioner concluded that the proscription, the reliance placed on it during Kanu’s trial and the resulting judgment raised fundamental questions about the rule of law, judicial accountability and the constitutional safeguards available to defendants in Nigeria.

He maintained that Justice Nyako’s earlier ruling, the circumstances surrounding Justice Kafarati’s ex parte order and the pending Supreme Court controversy could not be ignored in assessing the legal foundation of the proceedings against Mazi Nnamdi Kanu.

In his final assessment, Ifedi declared that IPOB’s proscription was an absolute constitutional nullity, that the trial was fundamentally tainted and that the conviction was built on a defective legal foundation.

He summarised his position in the following words:

“NYAKO CLEARED IPOB IN OPEN COURT FOR LACK OF EVIDENCE. THE STATE RAN TO KAFARATI IN THE DARK EX PARTE WITH ZERO PROVEN CASUALTIES OR TERRORIST ACTS. OMOTOSHO BURIED NYAKO’S JUDGMENT, TWISTED ‘JUDICIAL NOTICE’ TO BYPASS PROOF BEYOND REASONABLE DOUBT, AND HANDED DOWN A CONVICTION BUILT ON BLOOD AND DECEIT.”

The commentary, authored by Onyedikachi Ifedi, Esq., forms Part 8 of his 150-part series examining what he describes as jurisdictional failures, constitutional violations and judicial errors in the trial of Mazi Nnamdi Kanu.