Inside the Judgment: The Evidence Audit
An accused who says nothing has answered nothing. He has also proved nothing against himself.
CHARGE
That the trial court reasoned from an evidential rule belonging to civil litigation; that treating uncontroverted prosecution evidence as admitted converts silence into proof and lowers the standard the Constitution fixes; and that the electronic material carrying six of seven counts required proof of authorship separate from any certificate of compliance.
Prosecution closed its case in June 2025 after calling five witnesses and tendering bundles of documentary and video material, principally broadcasts attributed to the defendant and circulated through Radio Biafra and social media platforms. [Documented] Defense called nobody. Kanu declined to enter a defense on the footing that the charges rested on a repealed statute, the court held that he had waived the right, and judgment followed on November 20, 2025 with conviction entered on all seven counts. [Documented] Structure of that record makes the evidence audit unusually clean, because every finding of fact in the judgment rests on material from one side.
The Rule the Court Applied
Reported reasoning contains a proposition that governs the entire audit. Delivering judgment, the court stated that facts not controverted were deemed admitted, and proceeded to find the elements of Count 1 established on broadcasts the defendant had not contradicted. [Documented] Language of that kind belongs to civil pleading, where an averment not traversed is taken against the party who failed to deny it and where the contest runs on the balance of probabilities. [Inference]
Criminal proof operates on an opposite principle. A plea of not guilty puts every element of every count in issue and keeps it there until verdict, and no failure by an accused to contradict evidence withdraws that plea or narrows what must be established. Sections 131 and 132 of the Evidence Act place the legal burden on the party who would fail if no evidence were given, section 135 requires commission of a crime to be proved beyond reasonable doubt and casts the burden on whoever asserts it, and section 36(5) of the Constitution presumes innocence until guilt is proved. [Documented] Section 36(11) secures the right to remain silent, and a right exercised cannot supply the evidence its exercise withholds. [Inference]
Nigerian appellate authority describes that burden in a single word. Delivering the leading judgment in Bakare v. The State, the Court of Appeal held the ultimate burden to rest on the prosecution throughout the trial, since the prosecution is the party that fails if no evidence is called in proof of the charge, and stated in terms that the burden is static and does not shift. [Documented] Reasoning to the same effect runs through Sabi v. State, Osuagwu v. State, Kabiru v. Attorney-General of Ogun State and Ike v. State, and the proposition has not been doubted. [Documented] Where an essential ingredient of an offense goes unproved, or the proof of it raises a reasonable doubt, the accused takes the benefit of that doubt whether or not he opened a case. [Documented]
PLATE P5-01 The civil rule and the criminal rule, set against each other on the same facts.
What the Distinction Does and Does Not Yield
Overstating this would be a mistake, and competent counsel for the respondent would exploit the overstatement at once. Nigerian courts act on credible uncontradicted evidence every term, and nothing obliges a judge to disbelieve a witness whom nobody challenged. Bakare puts the position at its highest against this file: where the whole of the evidence leaves the court in no doubt that the offense was committed by the accused, the burden is discharged and the conviction stands even on the credible evidence of a single witness. [Documented] Absence of a defense case forms part of the setting against which credibility is assessed, and saying otherwise would misstate the law. [Inference]
Distinction lies in the direction of reasoning. Acting on unchallenged evidence because it satisfies the criminal standard is orthodox. Treating propositions as established because they were not contradicted reverses the inquiry, since it asks what the accused failed to dispute rather than what the prosecution managed to prove. Between those two formulations sits the difference between a judgment that survives appellate scrutiny and one that does not, and the phrase actually used points toward the second. [Inference]
Consequences run count by count. Where a broadcast was played, authenticated, and shown to contain words capable in law of amounting to incitement, the deemed-admission formula adds nothing and costs nothing. Where an element depended on material thinner than that, the formula becomes load-bearing, and the judgment stands or falls on whether the court supplied by presumption what the evidence left open. Which counts fall into which category is a question the certified record answers, and the audit tables accompanying this series are built to answer it line by line.
Foreclosure supplies the reason this matters more here than it would elsewhere. Kanu did not concede the charges; he disputed the competence of the proceedings, contending that the statute under which six counts were laid had been repealed, and refused to enter a defense on that ground rather than through any admission of the facts alleged. [Documented] Court held that he had waived his right after weeks of persuasion and six days allotted for the purpose. [Documented] A refusal grounded in a jurisdictional objection is a legal position, and converting it into acquiescence in the prosecution narrative gives the objection an evidential consequence it cannot bear. [Inference]
Recordings, and the Links a Certificate Leaves Untouched
Six of the seven counts turned on communications rather than on conduct witnessed by anyone in the courtroom. [Documented] Evidence of that character travels a long route before it becomes proof of guilt, and Nigerian law breaks the route into separate questions that a single document cannot answer together.
Section 84 of the Evidence Act governs the admissibility of a statement contained in a document produced by a computer, and requires proof that the computer was in regular use, that information of the kind contained in the statement was regularly supplied to it, that it was operating properly over the material period, and that the information reproduces or derives from information supplied in the ordinary course. [Documented] Compliance may be established by a certificate identifying the document, describing the manner of its production, and giving particulars of the device, signed by a responsible officer. [Documented]
PLATE P5-02 The route a recording travels, and the two links a certificate of compliance addresses.
Consequence of non-compliance is exclusion rather than discount. In Kubor v. Dickson the Supreme Court held that a party tendering a computer-generated document must do more than hand it up from the bar, that evidence must be called to establish the section 84(2) conditions, and that documents failing the precondition were inadmissible however relevant. [Documented] Counterweight exists and belongs in this text rather than in a reply to it. Appellate decisions have held that a certificate under section 84(4) need not be produced by an expert, and Nigerian courts have declined to apply the section mechanically where the original device itself was tendered or where the party did not control the machine that generated the material. [Documented]
Reach of that certificate ends where the machine ends. Nothing in section 84 speaks to who downloaded a file, from which account, on what date, or by what method; nothing establishes that an excerpt is complete or that a transcript reproduces what the recording contains; and nothing identifies the speaker. Authorship in particular is proved by evidence of recognition, admission, or circumstance, and remains a live question however impeccable the certificate. [Inference] A court satisfied on admissibility has resolved one issue and left two standing.
Practical questions follow, and each has an answer somewhere in the record of proceedings. Identification of the person who captured each file, of the device or account from which it came, and of any editing or conversion between capture and tender; production of the source device or an explanation for its absence; the existence of metadata, hash values, or a custody log; the identity of whoever prepared each transcript and the basis for treating it as accurate; and the evidence, separate from all of it, connecting the voice to the defendant. Answers to those questions determine whether the electronic case was proved or assumed.
Two features of the reported findings sharpen these questions. Words attributed to the defendant were quoted in the judgment as proof of intention to intimidate the population, which places authorship at the center of Count 1 rather than at its margin. [Documented] Findings also linked the broadcasts to deaths in the South-east, a causal proposition requiring evidence of its own, since the elements of an offense of incitement are not established by proving that violence occurred somewhere after words were spoken. [Inference] Each proposition is provable on a sufficient record, and each collapses without one.
Hearsay Offered as Corroboration
One further category demands attention because it recurs in prosecutions of this kind. Statements made to investigators by persons never called as witnesses are hearsay, and hearsay does not become admissible by being described as corroboration. Where an account attributed to an absent person is used to strengthen a finding, the court must identify the exception under which it was received, and an acknowledgment that the maker was not called goes to the fact of admission rather than curing it. [Inference] Nigerian authority is settled that evidence inadmissible in itself is not rendered admissible by the use to which a party seeks to put it.
Corroboration doctrine adds a further constraint that bears directly on how five witnesses could sustain seven counts. Evidence capable of supporting one count does not travel to another by proximity, and material admitted for a limited purpose is confined to that purpose whatever the judgment later makes of it. Where a single body of broadcasts supplies the proof for several distinct offenses, each count requires its own passage, its own proof of authorship, and its own demonstration of the mental element the section prescribes. [Inference]
Building this audit on impression would forfeit it. For every item tendered, the register accompanying this series records the witness through whom it came, its description, the count to which it was directed, any objection and the ruling on it, whether admission was general or limited, its character as direct evidence, opinion, confession, or electronic material, and whether the judgment relied on it and for which element. Gaps between admissibility, authenticity, and weight are recorded wherever they appear.
Certified proceedings, the signed final charge, the ruling on the no-case submission, and the complete exhibit inventory are the documents that convert this register from a set of questions into a set of findings, and they have been applied for. Publication of the audit tables follows their receipt. Justice Omotosho and the Office of the Attorney-General of the Federation have each been invited to address the matters raised in this installment, and any response will be published in full and without alteration. Correspondence may be directed to [email protected].
SOURCES
Constitution of the Federal Republic of Nigeria 1999 (as amended), sections 36(5) and 36(11).
Evidence Act 2011, sections 84(2), 84(4), 131, 132 and 135.
Evidence (Amendment) Act 2023.
Terrorism (Prevention) (Amendment) Act 2013, Act No. 3.
Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534, per Onnoghen JSC at 577–578.
Bakare v. The State (2017), Court of Appeal. https://lawcarenigeria.com/abayomi-bakare-v-the-state-2017/
Sabi v. State (2011) 14 NWLR (Pt. 1268) 421.
Osuagwu v. State (2012) 5 NWLR (Pt. 1347) 360.
The State v. Azeez (2008) 4 SC 188.
Kabiru v. Attorney-General, Ogun State (2009) 5 NWLR (Pt. 1134) 209.
Ike v. The State (2010) 16 NWLR (Pt. 1218) 132.
Brila Energy Ltd v. Federal Republic of Nigeria (2018), Appeal No. CA/L/658CA/2017.
Commissioner of Police v. Doolor (2020), Appeal No. CA/MK/182/2017, per Ekanem JCA.
ThisDay. (2025, November 21). Nnamdi Kanu’s terrorism trial ends after 10 years, bags life imprisonment verdict. ThisDay. https://www.thisdaylive.com/2025/11/21/nnamdi-kanus-terrorism-trial-ends-after-10-years-bags-life-imprisonment-verdict/
Cable News Network. (2025, November 20). Nnamdi Kanu: Nigerian court convicts separatist leader for terrorism. CNN. https://www.cnn.com/2025/11/20/africa/nnamdi-kanu-terrorism-conviction-intl
Al Jazeera. (2025, November 20). Nigeria jails separatist leader Nnamdi Kanu for life on terrorism charges. Al Jazeera. https://www.aljazeera.com/news/2025/11/20/nigeria-convicts-separatist-leader-nnamdi-kanu-on-terrorism-charges
Premium Times. (2025, November 7). Court fixes date to deliver judgment in Nnamdi Kanu’s terrorism trial. Premium Times. https://allafrica.com/stories/202511070373.html
Premium Times. (2025, November 20). There won’t be judgement in my terrorism trial, Kanu tells court. Premium Times. https://allafrica.com/stories/202511200326.html
Nigeria Info. (2025, November 24). Explainer: The full story of Nnamdi Kanu’s legal battle, 2015–2025. Nigeria Info FM. https://www.nigeriainfo.fm/news/homepagelagos/explainer-the-full-story-of-nnamdi-kanus-legal-battle-2015-2025/
