The Supreme Court, on December 15, 2023, reversed that decision.

In doing so, the highest court in the land pointed out that the lower court failed to determine the accused’s guilt or innocence on the merits.

The apex court also relied on a stay of execution granted by the Court of Appeal on October 28, 2022 to preserve the charges, a move that paved the way for a retrial.

Njoku, speaking on behalf of the Mazi Nnamdi Kanu Global Defence Consortium, said that the reason given by the apex court in overturning the Court of Appeal ruling was “logically absurd, constitutionally dangerous, and per incuriam—a judgment delivered in ignorance of binding precedents.”

He pointed out that the Nigerian law is clear that once a court lacks jurisdiction, its proceedings are null and void and cannot be revived.

He cited authorities such as Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Abacha v. State (2002) 5 NWLR (Pt. 761) 638 and Ogbebor v. State (2002) 1 NWLR (Pt. 748) 336 in his argument.

“The Supreme Court then leaned on this contrivance to order a retrial—something both Abacha and Ogbebor expressly forbid,” he noted.

Njoku further argued that retrying Kanu violates the constitutional prohibition against double jeopardy.

“Section 36(9) prohibits retrying a person after acquittal,” he pointed out, stressing that, Once the Court of Appeal—a competent court—quashed the charges as unlawful, that discharge carried finality.

“Treating it as tentative until guilt or innocence is tested on the merits effectively abolishes the protection against double jeopardy,” he emphasised.

He also cautioned that the precedent being set by the Supreme Court was dangerous, warning, “If this logic stands, then any discharge based on lack of jurisdiction can be overturned until a trial on the merits is conducted. That reduces jurisdiction—a constitutional safeguard—into a meaningless technicality.”

The defence team also pointed to the international dimension of the case regarding the June 24 High Court of Kenya’s ruling which declared that Kanu’s abduction and transfer to Nigeria were unlawful, involving torture and breaches of both the African Charter and the International Covenant on Civil and Political Rights.

“This ruling” the lawyer noted, “reinforces the Court of Appeal’s 2022 finding that jurisdiction was divested.

“By disregarding this and insisting on a trial, Nigeria risks deeper international condemnation and potential sanctions,” Njoku warned.

The case against Kanu is currently before the Federal High Court in Abuja, where the prosecution closed its case on June 20, after calling five witnesses from the Department of State Services.

Kanu’s legal team, led by Chief Kanu Agabi (SAN), filed a no-case submission, with Justice James Omotosho expected to rule on October 10.

Njoku, however, maintained that “this entire proceeding is tainted by the Supreme Court’s per incuriam ruling and the unconstitutional stay that preserved void charges. In law, the trial is a nullity.”

Summing up his position, the lawyer declared: “The Supreme Court’s decision in FRN v. Nnamdi Kanu is a judicial error of historic proportions. By insisting that only merits-based acquittals trigger double jeopardy, the Court has contradicted its own precedents, hollowed out Section 36(9), and exposed Nigeria to ridicule before the international community.

“The Court of Appeal’s discharge of October 13, 2022 should have ended the matter. Anything beyond that is an unlawful resurrection of dead charges.”

“The ongoing trial before Justice Omotosho is unconstitutional, illegitimate, and unsustainable in law,” he added.