By Jane Okeke
A constitutional lawyer, Njoku Jude Njoku, has faulted the Nigerian judiciary over what he described as a “false interpretation” of the principle of double jeopardy and the phrase superior court in the ongoing case of the detained leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu.
In a strongly worded statement issued on Sunday, September 14, 2025, Njoku argued that the Supreme Court’s handling of Kanu’s case contradicts established constitutional provisions and previous judicial authorities.
“The dominant reasoning of our courts has been that if a trial is declared a nullity, it is as if no trial ever occurred,” he said. “Section 36(9) of the Constitution bars double jeopardy but allows an exception ‘…save upon the order of a superior court.’ Unfortunately, our judges have wrongly equated ‘superior court’ with ‘higher court in hierarchy,’ which is not what the Constitution intended.”
Citing Section 46(1) of the 1999 Constitution (as amended), Njoku explained that the phrase superior court refers to a class of superior courts of record listed in Section 6(5), not hierarchical superiority. “The High Court of a State and the Federal High Court are both superior courts of record. Neither is higher than the other. By the same logic, ‘superior court’ in Section 36(9) cannot mean only the Court of Appeal or Supreme Court,” he said.
Njoku also criticised what he called a judicial contradiction in rulings on jurisdiction. “Our courts say jurisdiction is the lifeblood of adjudication, yet they turn around to manufacture jurisdiction after declaring a trial a nullity. If jurisdiction is truly lifeblood, then once absent, the case is dead. It cannot be resurrected by judicial decree,” he noted.
He referred to the Supreme Court’s decision in Dikko v. State (2016), where the court held that “once a trial is declared a nullity, the accused stands discharged and acquitted; the matter cannot be reopened to his detriment.” According to him, this authority decisively supports the view that Kanu cannot be retried.
“Once the Court of Appeal discharged Nnamdi Kanu in October 2022, his jeopardy ended. Section 36(9) is clear: once a competent superior court of record has discharged an accused, he cannot be tried again. To order a retrial after this point is to erase the Constitution,” Njoku stressed.
The lawyer faulted the Supreme Court’s December 2023 ruling in FRN v. Kanu, describing it as self-contradictory and unconstitutional. “The apex court equated ‘superior court’ with ‘higher court,’ ignored its own precedent in Dikko v. State, and attempted to square a circle by declaring lack of jurisdiction yet ordering a retrial. That decision was per incuriam and void ab initio,” he declared.
He warned that failure to correct the error would further erode public trust in Nigeria’s justice system. “Nigeria’s judiciary cannot say one thing under Section 46 and then twist Section 36(9).
“It cannot chant that jurisdiction is lifeblood while conjuring it from thin air. Unless corrected, this perverse jurisprudence will bury what little confidence remains in the courts,” Njoku concluded.
