A fresh legal challenge to the conviction of detained Indigenous People of Biafra (IPOB) leader, Mazi Nnamdi Kanu, has accused Justice James Omotosho of the Federal High Court of selectively applying the law, disregarding a mandatory provision of the Evidence Act and bypassing binding Supreme Court precedent.
The argument centres on Section 122 of the Evidence Act 2011, which requires courts to take judicial notice of laws and subsidiary legislation having the force of law in Nigeria.
According to the challenge, Justice Omotosho demonstrated in his own judgment that he was fully aware of the provision but allegedly failed to apply it when Kanu, who was appearing without legal representation at the time, invoked it in challenging the legal foundation of the charges against him.
Justice Omotosho acknowledged Section 122
The challenge points to page 34 of the certified judgment delivered on November 20, 2025, in Suit No. FHC/ABJ/CR/383/2015, Federal Republic of Nigeria v. Mazi Nnamdi Kanu.
Justice Omotosho reportedly wrote that the court was 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.
The judge relied on the provision in taking judicial notice of an order made by Justice Kafarati in Suit No. FHC/ABJ/CS/878/2017, Attorney General of the Federation v. Indigenous People of Biafra, which proscribed Kanu's organisation as a terrorist group.
The legal challenge argues that the wording used by Justice Omotosho — particularly the declaration that the court was "bound" to take judicial notice — demonstrated that the judge understood Section 122 to impose a mandatory duty.
However, it contends that the same statutory provision was not applied when the defence sought judicial notice of laws relevant to the validity of the charges.
'Shall' imposes a mandatory duty
The challenge relies on Section 122(2)(a) of the Evidence Act 2011, which provides that a court shall take judicial notice of laws or enactments and subsidiary legislation having the force of law that are or were previously in force in any part of Nigeria.
It argues that the use of the word "shall" makes the requirement mandatory rather than discretionary.
The argument further cites the Supreme Court decision in INEC v. Etene, which it says reinforces the principle that statutory provisions expressed in mandatory terms impose a binding duty on the courts.
According to the challenge, a trial judge cannot transform such a statutory requirement into an optional exercise depending on the circumstances of a case.
Supreme Court precedent also raised
The legal argument also relies on the Supreme Court's decision in SC/CR/1361/2022, delivered on December 15, 2023, which remitted the matter back to the lower court.
It cites the lead judgment of Justice Lawal Garba, JSC, delivered by a panel headed by then Chief Justice of Nigeria, Justice Olukayode Ariwoola.
The challenge maintains that the Supreme Court reaffirmed the duty of Nigerian courts to take judicial notice of primary statutory enactments, including repealed laws.
It therefore argues that Justice Omotosho, sitting as a trial judge in a case remitted from the apex court, was bound by the Supreme Court's pronouncements under the doctrine of stare decisis.
The argument alleges that failing to apply the principle when it favoured Kanu amounted to a disregard of binding judicial precedent.
Kanu's request for judicial notice
The challenge further points to proceedings of November 4 and 5, 2025, when Kanu appeared in court without counsel.
According to page 973 of the trial record, Kanu reportedly asked the court to take judicial notice of what he described as the repeal of the Terrorism Prevention (Amendment) Act 2013 (TPAA) and the non-existence of the Criminal Code Act C-45.
The argument maintains that Kanu's request was not simply a political argument but a specific invocation of a statutory mechanism.
It says he identified both the alleged statutory defects and the mechanism through which he wanted the court to address them.
During the following day's proceedings, Kanu reportedly argued that no trial could be conducted under a dead law and that the prosecution had the responsibility of moving the case from the 2013 legal framework to the applicable law in 2022.
The challenge alleges that instead of halting proceedings to address the application, Justice Omotosho proceeded with the trial.
It describes the development as particularly significant because Kanu was appearing pro se, meaning without legal representation.
Challenge attacks 'assuming without conceding'
The legal argument also challenges the use of the phrase "assuming without conceding" in Justice Omotosho's final judgment.
It argues that an assumption made in a judgment cannot retrospectively satisfy a mandatory statutory requirement that had allegedly been raised during proceedings weeks earlier.
According to the challenge, judicial notice and an assumption are fundamentally different.
It maintains that judicial notice involves the court recognising a fact or law as legally established, whereas an assumption is hypothetical and cannot replace a statutory duty to take judicial notice.
The challenge consequently describes the judgment as potentially per incuriam, arguing that a decision reached by disregarding mandatory statutory provisions and binding precedent cannot sustain the conviction.
Alleged double standard
The argument further alleges that the trial record reveals a double standard in the application of Section 122.
It contrasts the court's treatment of Justice Kafarati's proscription order with its treatment of the alleged repeal of the TPAA 2013 and the Criminal Code Act C-45.
According to the challenge, Section 122 was treated as mandatory when the prosecution relied on it to introduce the earlier court order, but allegedly not treated with the same force when the defence invoked it to challenge the legal foundation of the charges.
The argument contends that such selective application of the Evidence Act undermines the principle of neutral adjudication.
Legal consequences claimed
The challenge concludes that Justice Omotosho's alleged failure to apply Section 122 constituted more than an inadvertent legal mistake.
It argues that the judge:
knew of Section 122;
expressly relied on Section 122;
applied the provision in favour of the prosecution;
allegedly refused to apply it when invoked by Kanu;
allegedly disregarded binding Supreme Court precedent; and
subsequently relied on an "assuming without conceding" formulation to address the issue.
On that basis, the challenge argues that the alleged failure to comply with the Evidence Act amounted to a serious error of law capable of affecting the validity of the conviction.
The argument ultimately maintains that an assumption cannot replace judicial notice and that a conviction cannot lawfully be sustained on repealed or non-existent laws.
It ends with the demand: "An assumption is not judicial notice. A dead law cannot sustain a conviction. Show us the law."