A lawyer representing Nnamdi Kanu, the detained leader of the Indigenous People of Biafra (IPOB), has accused Justice James Omotosho of the Federal High Court of selectively applying Section 122 of the Evidence Act in Kanu's trial. Onyedikachi Ifedi alleged that the judge applied the provision when it favoured the prosecution but ignored it when invoked by the defendant. This accusation was made in the second part of Ifedi's legal analysis of the trial that led to Kanu's conviction.
According to Ifedi, Justice Omotosho stated in the certified judgment delivered on November 20, 2025, that the 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. The judge took judicial notice of an order by Justice Kafarati in Suit No. FHC/ABJ/CS/878/2017, which proscribed IPOB as a terrorist organisation. Ifedi argued that this showed the judge recognised Section 122 as imposing a mandatory duty.
However, Ifedi claimed that the judge adopted a different approach when Kanu invoked the same provision to challenge the legal foundation of the charges. Section 122(2)(a) of the Evidence Act provides that the court shall take judicial notice of 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. Ifedi cited the Supreme Court decision in INEC v. Etene and another Supreme Court judgment in SC/CR/1361/2022 delivered on December 15, 2023, in Kanu's case.
Ifedi focused on the proceedings of November 4 and 5, 2025, when Kanu was without counsel. According to the record, Kanu pleaded for the court to take judicial notice of the repeal of the Terrorism Prevention and Activities Act (TPAA) 2013 and the non-existence of the Criminal Code Act C-45. Kanu argued that no trial can be conducted on a dead law and that the onus was on the prosecution to migrate his case to map it from 2013 to 2022. Ifedi contended that Kanu invoked the statutory mechanism of judicial notice, but the court continued with the trial without determining the application.
Ifedi criticised the judge's use of "assuming without conceding" in the final judgment to address the issues. He argued that an assumption cannot retrospectively satisfy a statutory obligation and that judicial notice and assumption are legally distinct. Ifedi described the alleged failure as a serious error of law rendering the affected reasoning per incuriam. He accused the court of selective obedience, taking judicial notice of the 2017 proscription order for the prosecution while refusing Kanu's application relating to repealed laws.
Ifedi questioned whether the selective obedience to the Evidence Act was consistent with neutral adjudication. He concluded that the alleged failure constituted a reversible error affecting the validity of the conviction. The lawyer's comments have raised concerns about the judiciary's role in the trial and the conviction of Kanu. The case has attracted attention from various stakeholders, with some questioning the fairness of the trial process.
The controversy surrounding Kanu's trial and conviction continues to generate debate. Key stakeholders are watching the developments closely, as the case has significant implications for the rule of law and human rights in Nigeria. The Supreme Court's judgment in SC/CR/1361/2022 has been cited as a precedent in the case, and it remains to be seen how the judiciary will respond to the allegations of selective application of the Evidence Act.
Key points
- Lawyer accuses judge of selective application of Evidence Act in Kanu's trial.
- Judge allegedly applied provision when it favoured prosecution but ignored it when invoked by defendant.
- Alleged failure constitutes reversible error affecting validity of conviction.
