Legal Briefing Note: The Supreme Court (Apex Court) Can't Do What  The Law Forbids, Says Lawal Garba, JSc's Remittal Judgement In The Case Of Mazi Nnamdi Kanu 

By Onyedikachi Ifedi
The Quashed Counts and the Separate Juridical Problem of Count 15 (Later Count 7)

THE TWO QUESTIONS
This note raises two separate questions.

QUESTION ONE
What law revived the seven counts quashed by the Court of Appeal?

QUESTION TWO
What law authorised the Supreme Court to substitute the statutory foundation of Count 15, later numbered Count 7 at the Federal High Court?

The Supreme Court had appellate jurisdiction.

That is not disputed.

But appellate jurisdiction does not itself confer a power to resurrect a quashed charge or rewrite the statutory foundation of a criminal accusation.

If the law permits either act:

SHOW US THE LAW.

THE SUPREME COURT IS NOT SUPREME OVER THE LAW

Some describe the Supreme Court as a “court of policy.”

That cannot mean policy gives a court powers which the law has withheld.

Policy cannot revive a quashed charge.

Policy cannot replace a repealed statute.

Policy cannot confer criminal jurisdiction.

The Supreme Court may interpret and develop the law.

It cannot legislate the criminal law required to reach a preferred outcome.

It is supreme within the judicial hierarchy.

It is not supreme over the law.

QUESTION ONE

WHAT LAW REVIVED THE QUASHED COUNTS?

On 13 October 2022, the Court of Appeal quashed the counts and discharged Mazi Nnamdi Kanu.

On 15 December 2023, the Supreme Court set aside that judgment and ordered that the trial should “continue.”

Justice Nyako's subsequent recusal may explain why proceedings had to commence before another judge and why a fresh plea became necessary.

But that is not the question.

Recusal can change the judge and restart procedure. It cannot answer a more fundamental question: what was the legal status of the counts to which the accused was asked to plead?

The counts had been quashed by the Court of Appeal.

The Supreme Court said the trial should “continue.”

A new judge subsequently took a fresh plea and proceeded to trial.

The question is therefore not whether recusal could require a fresh plea.

The question is:

WHAT LAW MADE THE QUASHED COUNTS LEGALLY COGNISABLE AGAIN SO THAT THEY COULD BE PUT BEFORE A NEW JUDGE FOR PLEA AND TRIAL?

That is the question recusal cannot answer.

A change of judge is procedural.

The existence of a criminal charge is jurisdictional.

One cannot be used to answer the other.

SHOW US THE LAW.

GENERAL TERRORISM JURISDICTION IS NOT ENOUGH

The Federal High Court has jurisdiction over terrorism offences.

Nobody disputes that.

But jurisdiction over terrorism generally is not the same thing as the existence of a live charge against a particular person.

There must first be a legally cognisable accusation.

Then jurisdiction can attach.

Then a trial can follow.

The sequence is:

LAW → CHARGE → JURISDICTION → TRIAL
Not:

COURT ORDER → CHARGE → JURISDICTION → TRIAL

Lawal Garba JSC himself stated the governing principle:

A court cannot confer jurisdiction where the law has not conferred it.

That principle does not apply only to lower courts.

It applies to courts.

If a quashed count needed to be revived before it could support another criminal proceeding, the law that revived it must be identified.

WHAT LAW?

A SIMPLE RULE

In Onu Okafor v The State (1976), the Supreme Court refused a retrial where the original proceeding lacked the legal authority required to commence it.

The Court's point was simple:

“Retrial implies that there was a former trial.”

That does not mean another prosecution can never be brought.

It means the legal foundation matters.

A criminal proceeding cannot simply be assumed into existence.

That brings us back to the same question:

What law revived these particular quashed counts?

QUESTION TWO

WHAT LAW AUTHORISED THE SUBSTITUTION OF COUNT 15'S STATUTORY FOUNDATION?

This is a separate question.

Before the Supreme Court, the accusation was Count 15.

It concerned the alleged importation and concealment of a radio transmitter.

It was pleaded under:

“Section 47(2)(a) of Criminal Code Act, CAP C45 LFN 2004.”

Lawal Garba JSC examined that citation.

At page 32 of the remittal judgment, he held that Cap C45 was CEMA, not the Criminal Code Act.

He then held that the facts disclosed an offence under:

section 47(2)(a) of CEMA Cap C45.

He described the reference to the Criminal Code as a:

“mere mistake.”

The Court therefore supplied CEMA as the statutory foundation of the count and treated Count 15 as recognised, cognisable and grounded in that law.

The question is straightforward:

WHAT LAW AUTHORISED THE SUPREME COURT, SUO MOTU, TO DO THAT?

What law authorised the Court to take a count pleaded under one Act and send it to trial under another?

The Supreme Court is not the prosecutor.

It is a neutral arbiter.

If the law gives it the power to substitute the statutory foundation of a criminal accusation:

SHOW US THE LAW.

At the later Federal High Court proceedings, Omotosho J placed the same accusation on the charge sheet as Count 7.

One accusation.

Two numbers.

Changing the number did not create a new legal foundation.

It did not answer the question.

SHOW US THE LAW.

THE “WRONG LAW” RULE DOES NOT ANSWER THE QUESTION

At page 33, Lawal Garba JSC relied upon the rule that a charge under the wrong law is not necessarily invalid where the offence is defined and punished under an extant law.

But that rule does not answer this question.

The issue is not whether a court can ever correct an error.

The issue is:

Who gave the Supreme Court the power to supply a different statutory foundation for this count?

That power, like every other judicial power, must come from law.

A conclusion is not a source of power.

Calling something a “mere mistake” is not a source of power.

SHOW US THE LAW.

THEN COMES THE REPEALED LAW

There is a second and independent problem.

At page 33, Lawal Garba JSC described CEMA Cap C45 as an:

“extant and existing law”

on 15 December 2023.

But CEMA Cap C45 had been repealed on 20 April 2023 by the Nigeria Customs Service Act 2023.

The dates are not complicated:

20 April 2023 — CEMA Cap C45 repealed.

15 December 2023 — CEMA Cap C45 declared “extant and existing.”

A law cannot be both repealed and extant unless another law preserves its operation.

So the question is obvious:

WHAT LAW KEPT CEMA CAP C45 ALIVE AFTER 20 APRIL 2023?

If such a law exists, identify it.

SHOW US THE LAW.

THE TWO QUESTIONS — KEPT SEPARATE
QUESTION ONE — REVIVAL

The Court of Appeal quashed the counts.

The Supreme Court ordered “continuation.”

Justice Nyako's recusal subsequently required proceedings before another judge.

But recusal does not answer the legal status of the counts.

The question remains:

WHAT LAW MADE THE QUASHED COUNTS LEGALLY COGNISABLE AGAIN FOR PLEA AND TRIAL?

QUESTION TWO — SUBSTITUTION

Count 15 was pleaded under the Criminal Code Act, Cap C45.

Lawal Garba JSC treated it as an offence under CEMA Cap C45, section 47(2)(a).

The same accusation later appeared as Count 7.

One accusation.

Two numbers.

The question remains:

WHAT LAW AUTHORISED THE SUPREME COURT TO SUBSTITUTE THE STATUTORY FOUNDATION OF COUNT 15?

And independently:

WHAT LAW MADE CEMA CAP C45 “EXTANT AND EXISTING” ON 15 DECEMBER 2023 AFTER ITS REPEAL?

CONCLUSION

This case does not require complicated legal language.

The questions are simple.

The Supreme Court had jurisdiction to hear the appeal.

But where did it get the legal power to do what followed?

The Court of Appeal quashed the counts.

The Supreme Court ordered “continuation.”

Justice Nyako's recusal may explain why another judge took over and why procedure had to restart.

But it does not answer the question that comes before procedure:

What legally cognisable charges existed for that procedure to operate upon?

If the counts were still alive after being quashed, identify the law that kept them alive.

If they were dead, identify the law that revived them.

WHAT LAW?

Count 15 was pleaded under the Criminal Code Act.

Lawal Garba JSC supplied CEMA Cap C45 as its statutory foundation.

WHAT LAW AUTHORISED THAT SUBSTITUTION?

CEMA Cap C45 had already been repealed.

Yet the remittal judgment described it as “extant and existing.”

WHAT LAW KEPT IT ALIVE?

These questions cannot be answered by saying:

“The Supreme Court ordered it.”

That merely repeats the act whose legal basis is being questioned.

Nor can they be answered by saying:

“The Federal High Court has jurisdiction over terrorism.”

General jurisdiction over an offence does not itself create a legally cognisable charge against an individual.

The sequence remains:

LAW → CHARGE → JURISDICTION → TRIAL
Not:

COURT ORDER → CHARGE → JURISDICTION → TRIAL

The Supreme Court's finality does not mean that law becomes unnecessary.

The power to give the final judicial word does not include the power to manufacture the law required to support that word.

It is supreme within the judicial hierarchy.

It is not supreme over the law.

And so the demand remains:

SHOW US THE LAW.

Show us the law that made the quashed counts legally cognisable again.

Show us the law that authorised the substitution of Count 15's statutory foundation.

Show us the law that kept CEMA Cap C45 alive after repeal.

If those laws exist, identify them.

If they do not, a judicial order cannot manufacture them.

...Onyedikachi Ifedi, Esq. is a member of  the  Mazi Nnamdi Kanu's Global Legal Consortium