By Barrister Christopher Chidera
There are two immovable pillars of Nigerian jurisprudence that no trial court — no matter how ambitious — can wish away: (1) the effect of repeal on criminal statutes, and (2) the mandatory duty to take judicial notice of laws and official acts. Justice James Omotosho violated both. And because these violations are jurisdictional, they sink his no-case ruling and his final judgment beyond rescue, even by the most compromised panel sitting on appeal.
This is not an argument about sentiment. It is black-letter law.
I. Why Section 98(3) TPPA Cannot Save Omotosho — Savings Clauses Do NOT Resurrect Dead Laws
For months, Nigerian officials and their courtroom surrogates have attempted to twist Section 98(3) of the Terrorism Prevention and Prohibition Act, 2022 (TPPA) into a magic wand capable of reviving a repealed statute — the Terrorism (Prevention) Amendment Act (TPAA) 2013.
This is legally impossible.
Every appellate court that has ever spoken on the subject — in Nigeria and in the Commonwealth — has consistently held:
A. A savings clause preserves liabilities; it does NOT resurrect a repealed statute
Key authorities:
Ojokolobo v Alamu (1987) 3 NWLR (Pt.61) 377 – The Supreme Court held that upon repeal, the former statute “is dead for all purposes except to the extent that accrued rights or liabilities under it are saved.”
A.G. Lagos State v Dosunmu (1989) 3 NWLR (Pt.111) 552 – Savings clauses operate to preserve “past transactions, rights and obligations,” not to continue the existence of the repealed law.
Uwaifo v A.G. Bendel State (1983) 14 NSCC 57 – The court struck down attempts to “revive the authority” of a repealed statute for future actions. Repeal terminates prospective application.
Mustapha v Governor of Lagos State (2020) LPELR-49784 (CA) – A savings clause “does not and cannot breathe life into a law that has ceased to exist.”
Chief Ogbunyiya v Okudo (1979) 6–9 SC 32 – A repealed law “remains dead and of no effect except for accrued or completed matters.”
R v Burke (1913) 12 CLR 669 (High Court of Australia) – Across common-law jurisdictions, savings clauses are universally interpreted to prevent voids — not to permit new trials under dead legislation.
These authorities destroy the government’s strategy completely.
B. A savings clause cannot authorise a fresh trial under a repealed statute
This point is non-negotiable in Nigerian law:
Okumagba v Egbe (1965) NMLR 62 – Once a law is repealed, “no new proceedings can be founded upon it.”
Din v A.G. Federation (1988) 4 NWLR (Pt.87) 147 – Repeal bars initiation or continuation of proceedings because the law “no longer exists to support a charge.”
FRN v Osahon (2006) 5 NWLR (Pt.973) 361 – Criminal jurisdiction depends strictly on subsisting written law; a repealed law removes the foundation of jurisdiction.
In Nnamdi Kanu’s case, the alleged offences were framed exclusively under the TPAA — a law the National Assembly intentionally killed. The transitional clause in Section 97 TPPA preserves only liabilities, not the instrument of trial. Section 98(3) cannot command a court to close its eyes to a repeal.
Appellate precedent binds Omotosho. He had no discretion.
II. The Second Fatality: Omotosho’s Failure to Take Judicial Notice – A Jurisdiction-Killing Error
Even if one were to momentarily indulge the fantasy that TPAA survived its repeal, Omotosho committed a second constitutional blunder far more devastating: he failed to take judicial notice of the repeal, despite being obliged to do so by law.
This omission is not a “mere irregularity.” It is a foundational defect.
A. Judicial notice of enacted or repealed law is MANDATORY
Authorities:
NNPC v Fawehinmi (1998) 7 NWLR (Pt.559) 598 – Courts must take judicial notice of all laws, repeal or amendment inclusive. Failure to do so is a “grave error.”
Amadi v NNPC (2000) 10 NWLR (Pt.674) 76 – Judicial notice is automatic; it does not depend on counsel raising it.
UAC v Macfoy (1961) 3 WLR 1405 (Privy Council) – A proceeding based on a non-existent law is “incurably bad.”
A.G. Abia v A.G. Federation (2005) 17 NWLR (Pt.955) 490 – Courts must apply extant law as it exists, not as the parties imagine it to be.
Onochie v Odogwu (2006) 6 NWLR (Pt.975) 65 – Failure to take judicial notice of a statutory instrument voids the entire decision.
This is fatal.
B. Omotosho’s language exposes the failure
His phrase:
“Assuming without conceding that TPAA has been repealed…”
is the textbook definition of failure to take judicial notice.
A court is not permitted to assume the state of the law.
It must know the law judicially and authoritatively.
Because he refused to acknowledge a repeal that is public, enacted, gazetted, and judicially noticed across Nigerian courts, Omotosho’s no-case ruling and final conviction are void ab initio.
C. Once a court fails to take judicial notice, EVERYTHING collapses
The cases are clear:
Macfoy v UAC – You cannot put something on nothing.
NNPC v Fawehinmi – Judgment delivered in disregard of mandatory judicial notice is a nullity.
Onochie v Odogwu – Proceedings founded on an incorrect assumption of law must be set aside.
No appellate court — not even one eager to “sustain a veneer of conviction” — can cure a jurisdictional nullity. They can only acknowledge it.
Conclusion: The Law Has Already Defeated Omotosho’s Judgment
The government may rely on politics, optics, and raw willpower, but the law is brutally simple:
**1. TPAA is dead.
No savings clause can resurrect it.
Omotosho failed to take judicial notice of its death.
All proceedings he conducted upon that dead law are void.**
This is not a technicality. It is the rule of law.
And it is why the Court of Appeal — regardless of political instructions from above — will be forced to confront the irrefutable reality that Justice Omotosho lacked jurisdiction from the first day he sat on the matter.
Don’t let government sponsored propaganda noise deceive you. Ask anybody quoting the savings clause, Section 98(3) TPPA, to show you any Appeal or Supreme Court judgment that ever endorsed the conduct of a trial under a repealed law as Justice Omotosho did. There is none! That tells you all you need to know about the limitations of savings clause.
Barr. Christopher Chidera is a Public Affairs Analyst and Commentator.
