LEGAL MEMORANDUM
To: Defence Team – Appeal Unit
From: Legal Research & Strategy Desk
Date: 5 February 2026
Re: Statutory Interpretation of Sections 97 and 98(3) of the Terrorism (Prevention and Prohibition) Act 2022 (TPPA 2022): Mandatory Migration, Penal Construction, and Jurisdictional Consequences
I. ISSUES PRESENTED
Whether Section 97 TPPA 2022, couched in mandatory language ("shall"), requires all pending terrorism proceedings to continue and be completed under the TPPA 2022, thereby displacing reliance on the repealed Terrorism (Prevention) (Amendment) Act 2013 (TPAA), notwithstanding the permissive savings clause in Section 98(3).
Whether, assuming any apparent tension between Sections 97 and 98(3), settled principles of strict and beneficial construction of penal statutes require the interpretation most favourable to the accused—namely, completion of trial, conviction, and sentencing only under the extant TPPA 2022.
II. BRIEF ANSWERS
Yes. Nigerian courts consistently construe the word "shall" as mandatory and imperative, while "may" is permissive and discretionary. Where statutory provisions appear to overlap or conflict, specific and mandatory provisions prevail over general and permissive ones, particularly in transitional clauses. Section 97 therefore governs the legal regime under which pending proceedings must be completed, rendering reliance on the repealed TPAA a jurisdictional error.
Yes. In penal matters, ambiguity must be resolved strictly against the State and in favour of the accused. Any interpretation that permits conviction or sentencing under a repealed statute offends Section 36(12) of the Constitution and established principles of criminal justice. The interpretation requiring migration to TPPA 2022 is both legally compelled and constitutionally protective.
III. MATERIAL FACTS (UNCONTESTED)
The appellant was charged in 2021 under the TPAA 2013.
The TPPA 2022 repealed the TPAA by Section 98(1) with effect from May 2022.
Section 97 TPPA 2022 provides that existing proceedings "shall continue to be in force and have effect as if made... under the corresponding provisions of this Act."
Section 98(3) provides that such proceedings "may be continued... as if this Act had not been made."
Following appellate interventions, the trial recommenced de novo in March 2025 before a different judge.
On 20 November 2025, the appellant was convicted and sentenced under the repealed TPAA framework.
IV. ANALYSIS
A. Mandatory Language Prevails Over Permissive Language
1. "Shall" Imposes a Compulsory Statutory Command
The Supreme Court has repeatedly held that "shall" denotes obligation, not discretion:
Bamaiyi v. A.G. Federation (2001) 12 NWLR (Pt. 727) 468
Ifezue v. Mbadugha (1984) 1 SCNLR 427
Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1
Section 97 does not merely preserve proceedings; it dictates the legal framework under which they must continue. Its language leaves no room for judicial election.
2. "May" in Section 98(3) Is Enabling, Not Determinative
Nigerian courts consistently hold that "may" is permissive unless the context unmistakably imposes a duty:
Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451
Kamba v. Bawa (2005) 4 NWLR (Pt. 914) 43
Section 98(3) performs a validating function—preventing collapse of prior procedural steps—but does not override the mandatory migration commanded by Section 97.
3. Harmonisation Requires Section 97 to Control
Where provisions appear to overlap, courts adopt a construction that gives effect to both, while allowing the specific and mandatory provision to prevail:
A.G. Federation v. Abacha (2000) 6 NWLR (Pt. 660) 228
Interpretation Act, s.18
Section 98(3) saves proceedings from extinction; Section 97 governs how they must lawfully proceed. Construing 98(3) as authorising continued punishment under a repealed law would negate Section 97 entirely—an impermissible outcome.
B. Penal Statutes Must Be Construed in Favour of the Accused
1. Strict Construction Is a Constitutional Imperative
It is settled law that penal statutes admit of no expansive or punitive interpretation:
Aoko v. Fagbemi (1961) 1 All NLR 400
Ifegwu v. FRN (2001) 13 NWLR (Pt. 729) 103
Section 36(12) CFRN prohibits conviction for an offence not defined by a law in force at the time of conviction. Punishment under a repealed statute offends this provision directly.
2. Repealed Penal Laws Cannot Be Judicially Resurrected
Courts have repeatedly rejected attempts to impose criminal liability under spent legislation:
Obioha v. Dafe (1994) 2 NWLR (Pt. 325) 157
Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550
Where two constructions are possible, the one that avoids constitutional violation must be preferred.
V. CONCLUSION
On orthodox principles of statutory interpretation, constitutional supremacy, and penal construction:
Section 97 TPPA 2022 mandates migration of all pending proceedings to the TPPA 2022 regime.
Section 98(3) does not confer judicial discretion to continue punishment under a repealed statute.
Any contrary interpretation produces a jurisdictional nullity and violates Section 36(12) CFRN.
These grounds strike at jurisdiction, not mere error, and are properly framed as fundamental defects rendering the conviction unsustainable.
