Barrister Aloy Ejimakor, a member of Nnamdi Kanu’s legal team, has argued that the Federal High Court lacked jurisdiction to try the detained leader of the Indigenous People of Biafra (IPOB) over alleged offences said to have been committed outside Nigeria.
Ejimakor made the submission in a statement titled, “The Doctrine of Double Criminality That Departed Kanu’s Trial,” amid the continuing legal controversy surrounding Kanu’s conviction.
According to the lawyer, the prosecution’s failure to identify the foreign country where some of the alleged offences were committed, and to establish that the alleged conduct constituted a criminal offence in that jurisdiction, rendered the relevant counts in the charge incompetent.
Ejimakor said the issue was particularly significant because some of the broadcasts for which Kanu was prosecuted were allegedly made while he was outside Nigeria.
He maintained that under the Terrorism (Prevention) Act 2022 (TPPA), an act allegedly committed outside Nigeria could only constitute an offence under the relevant provision where it had an impact in Nigeria and was also a criminal offence in the country where the act occurred.
“Under the TPPA 2022 in force (when Kanu’s matter commenced anew), that same act is only an offence if it (i) has an impact in Nigeria, and (ii) is also a crime in the foreign country where it was committed (that is: double criminality),” Ejimakor said.
He argued that although the charges against Kanu stated that broadcasts made from an unnamed foreign location “had impact in Nigeria,” they did not expressly state that the broadcasts were also criminal offences under the laws of the country where they were made.
“This is a key omission that rendered all the pertinent charges incompetent, thus robbing the court of the requisite jurisdiction to have subjected Kanu to trial, without more,” he said.
Ejimakor described the double-criminality requirement as a “legislative gatekeeper” intended to limit the jurisdiction of Nigerian courts over alleged offences committed outside the country.
He cited the case of FRN v. Usman (2019) 12 NWLR (Pt. 1687) 298, arguing that Nigerian courts had previously recognised the importance of specifying the location of an alleged cross-border offence.
According to him, the doctrine provides protection for accused persons by preventing them from being prosecuted in Nigeria for conduct that was lawful in the jurisdiction where it allegedly occurred.
“The double criminality provision affords a significant substantive right to an accused person: the right not to be tried in Nigeria for a conduct that was lawful in the jurisdiction where it happened,” he said.
Ejimakor also challenged the legal basis upon which the Federal High Court proceeded with Kanu’s trial after the Supreme Court had ruled on the court’s general jurisdiction.
He argued that the Supreme Court’s decision permitting the trial to continue did not amount to a final determination of the substantive law that ought to govern the proceedings.
According to him, when Kanu’s trial commenced afresh before Justice James Omotosho, the court was required to first determine the law applicable to the new proceedings.
Ejimakor said Kanu had raised the issue through a preliminary objection, but the court declined to determine it.
“Thus, Kanu’s trial was not ‘pending’ under Section 97 TPPA 2022 but a new proceeding under the TPPA 2022,” he argued.
The lawyer further relied on Section 36(12) of the 1999 Constitution, which provides that a person can only be convicted of a criminal offence created by a written law in force at the time the offence was allegedly committed.
Ejimakor maintained that the repealed Terrorism Prevention Act 2013 (TPAA) could not have governed proceedings that commenced anew in 2025 because the law was no longer in force.
“TPAA 2013 was no longer in force in 2025 when Kanu’s trial actually commenced,” he said.
The lawyer further argued that if the Federal High Court intended to exercise extraterritorial jurisdiction over Kanu’s alleged broadcasts, the prosecution was required to plead and prove that the alleged conduct constituted a criminal offence both under Nigerian law and under the law of the foreign jurisdiction where the broadcasts were made.
He noted that the charge sheet identified periods between 2018 and 2021 during which Kanu was allegedly domiciled in the United Kingdom and Kenya.
“Therefore, for the court to assert extraterritorial jurisdiction, the prosecution was required to plead and prove that Kanu’s alleged acts (broadcasts) constituted a criminal offence both in Nigeria, and also in the United Kingdom or Kenya,” Ejimakor said.
He argued that the prosecution’s failure to identify the applicable foreign law was a significant omission.
According to him, if the alleged broadcasts did not constitute terrorism offences under the laws of the United Kingdom or Kenya, the omission could have serious implications for the Nigerian proceedings.
Ejimakor said the failure to establish the applicable foreign legal framework left the court without the necessary basis to determine whether the alleged conduct satisfied the statutory requirements for an extraterritorial offence.
He also argued that the failure to clearly specify the location from which the alleged broadcasts were made violated Kanu’s constitutional right to a fair hearing.
According to him, criminal charges must be sufficiently clear and specific to enable an accused person to understand the allegations against him and prepare an effective defence.
“The requirement for a charge to be specific and unambiguous is not a mere technicality; it is a cornerstone of the right to a fair hearing as guaranteed by Section 36 of the 1999 Constitution,” he said.
“The accused must be told, in clear and certain terms, the nature of the accusation against him to enable him to adequately prepare a defence, hence the reason Kanu was insisting: ‘show me the law’.”
Ejimakor also invoked Section 220 of the Administration of Criminal Justice Act 2015, arguing that a charge could be defective where the omission of legally required information could mislead an accused person in preparing his defence.
He cited Yakubu v FRN (2020) and other judicial authorities which he said established that a charge failing to disclose an essential ingredient of an offence could be void and incapable of conferring jurisdiction on a court.
The lawyer therefore maintained that the alleged failure to identify the foreign location of Kanu’s broadcasts and establish the requirement of double criminality was not merely a procedural defect.
Rather, he argued that the omissions went to the fundamental question of whether the Federal High Court had jurisdiction to try Kanu over the alleged offences.
“It is on the basis of these reasons (plus more) that I had insisted from day one that the Federal High Court lacked jurisdiction to have proceeded with Kanu’s trial,” Ejimakor said.