CORAM

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ADAMU HOBON FHC

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PARTIES

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ALFRED ELIJAH APPELLANTS

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THE STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant and 10 others were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State, on 7th September 1998, on a single count of armed robbery. They were charged pursuant to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria (LFN) 1990. The Appellant was the 5th accused, the 9th accused, Amos Farawa was reported dead on the day of the arraignment. The remaining 10 accused persons pleaded not guilty to the charge and the trial proceeded with the prosecution calling 5 witnesses and tendering 29 exhibits while each of the accused persons testified in his own defence and called no other witness. At the conclusion of the trial, in a considered judgment delivered on 3rd June, 1999, all the accused persons were found guilty as charged, convicted and sentenced to death. However, on 28/5/1999, the Tribunal (Consequential Amendments, etc) Decree No. 62 of 1999, was promulgated which dissolved certain Judicial Tribunals including the Robbery and Firearms Tribunals and vested jurisdiction in the Federal High Court or State High Court. Section 2 and 3 of Decree 62 made special provisions for cases in which the trials have been concluded but judgment was yet to be delivered and for ongoing part heard matters. Section 2(6) of the Decree empowered the High Court vested with jurisdiction to deliver judgment where trial had been concluded but judgment is yet to be delivered while part-heard criminal matters were to be tried de novo by virtue of Section 3(1)(b) of the Decree.The Appellant and the 7th accused John Boye, were dissatisfied with their conviction and sentence hence, they appealed to the Calabar Division, of the Court of Appeal. The Court allowed the appeal on the grounds that the judgment of the Tribunal was invalid, having regards to the commencement date of Decree 62. It therefore set aside the conviction and sentence of the Appellant but made consequential orders for the Appellants to be tried de novo. The Appellant, being dissatisfied with the decision, have filed an appeal to the Supreme court on the grounds that the learned Justices of the Court of Appeal erred in law in ordering a re-trial of the Appellant when it was not fair and just in the circumstances to so order.”

 

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HELD

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Appeal Dismissed

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ISSUES

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Whether the Court of Appeal was right when it ordered for retrial of the appellant for the same offence of armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria?”

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RATIONES DECIDENDI

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CRIMINAL TRIAL EXCEPTION TO THE BAR ON THE TRIAL OF A PERSON TWICE FOR THE SAME OFFENCE

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“In construing Section 3(1) (b) of the Decree 62, it will be appropriate to consider it alongside Section 36(9) of the 1999 Constitution, as amended. The provisions are as follows:
“Section 3(1) (b) of Decree 62:
“(1) where any part-heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge-
(b) shall, in a criminal case, try the matter de novo pursuant to this Decree.
Section 36(9) of the 1999 Constitution:
(9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. (Underlining mine)

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“SAVE UPON THE ORDER OF A SUPERIOR COURT MEANING OF THE PHRASE “SAVE UPON THE ORDER OF A SUPERIOR COURT’

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“Section 36(9) of the Constitution, in the underlined portion, provides an exception to the bar on a person being tried twice for the same offence. The words “save upon the order of a superior court’ implies that a superior court may make such an order if the circumstances of the case warrant it. Section 1(1) of the Constitution provides for supremacy of the Constitution.”

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ORDER OF RETRIAL IMPORT OF SECTION 19(2) OF THE COURT OF APPEAL ACT AND SECTION 36(9) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999

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“Section 19(2) of the Court of Appeal Act. Cap C.36 LFN 2004, which provides:
“(2) Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered, or order the appellant to be retried before a court of competent jurisdiction.”
See also: Kajubo Vs The State (Supra) @ 744 E – F where Oputa, JSC held with regard to Section 33(9) of the 1979 Constitution, which is in pari materia with Section 36(9) of the 1999 Constitution:
“Once (the court) makes an order for either the trial, or retrial or new trial, of the appellant, as the case may be, that order has now the backing of the Constitution and it will then be futile to argue that having declared the first trial a nullity, a retrial cannot be ordered.

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ORDER OF RETRIAL FACTORS TO BE CONSIDERED BY THE COURT IN DETERMINING WHETHER TO ORDER A RETRIAL OR HEARING DE NOVO

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“The case of Abondundu Vs the Queen (1959) NSCC (Vol. 1) 56 is considered the locus classicus on the factors to be considered by the court in determining whether to order a retrial or hearing de novo where the original trial has been declared a nullity. The factors, which must co-exist, are as follows:
(a)That there has been an error in law, including the observance of the law of evidence or irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice.
(b)That leaving aside the error or irregularity, the evidence taken as a whole, discloses a substantial case against the appellant
(c)That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(d)That the offence or offences for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e)That to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it.
See: Adeoye Vs The State (1999) 6 NWLR (Pt. 665) 74 @ 88: Amos Bude Vs The State (2016) 12 NWLR (Pt. 1525) 154.”

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FRESH TRIAL REASON FOR ORDERING A FRESH TRIAL

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“In Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385 & 393 – 394 H – A, this court, per Olatawura, JSC held:
“The reason for ordering a fresh trial in these cases of nullity is the interest of justice where the facts presented were such that to allow the appellant to walk out of the court as a free man may amount to a miscarriage of justice more so where the facts showed that an offence had been committed. This has however not whittled down the proof required in criminal trials- proof beyond reasonable doubt. Oputa, JSC put it succinctly in Sunday Kajubo Vs The State (1988) 3 SC 132/154; (1988) 1 NWLR (Pt. 73) 721 when the learned Justice said:
“These cases show that what is important is whether evidence as a whole discloses a substantial case against the appellant, and whether there are no such special circumstances as would render it oppressive to put the appellant on a trial a second time or to order him to be retried or order fresh hearing.”
I believe this dictum has restated the requirements for retrial in Abondundu & 4 Ors Vs The Queen (1959) 4 FSC 70/71 – 72; (1959) SC NLR162.”
Other factors to be taken into consideration, as held in: Umaru Vs The State (2009) 8 NWLR (Pt 1142) 134 @ 147 B – D and Okeqbu Vs The State (1979) 11 SC 1 are:
(a)The seriousness and prevalence of the offence;
(b)The probable duration and expense of the new trial;
(c)The lapse of time since the commission of the offence;
(d) The effect on the quality of evidence and the nature of the first trial, whether substantial or not.-

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ORDER OF RETRIAL UNDERLYING CONSIDERATION IN ORDERING A RETRIAL

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“The underlying consideration is the interest of justice, not only for the appellant but also for the victim and the society as a whole. See: Kajubo Vs the State (supra) @ 744 G where it was held:
“The evidence does disclose a substantial case against him (the appellant). His right to his freedom has to be weighed against the security of the general public who are entitled to be protected from armed robbers. Also the interest of justice demands that his case be properly tried so that he be acquitted and discharged on the merit or else found guilty and convicted also on the merit.”

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RETRIAL MEANING OF RETRIAL

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“The constitutional provision is against trial again on the same offence once the case has been determined and not against retrial or trial de novo. It is a plea that I have been discharged or convicted on this offence and cannot be tried again, otherwise called autre fois convict or discharge. Retrial means to conduct a new trial of an action that has already been tried. Whereas, trial de novo is a new trial on the entire case, that is, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance. See Per Olukayode Ariwoola, J.S.C in Omosaye V. State (2014) LPELR-22059(SC).”

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ORDER FOR A RETRIAL IMPORT OF SECTION 36(9) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA ON AN ORDER FOR RETRIAL

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“Section 36(9) of the 1999 Constitution (as amended) provides:
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.”
Per Oputa, J S C in Kajubo V. State (1988) LPELR-1646(SC) explained this constitutional provision thus:
An Order for a retrial or a new trial or trial de novo or a venire de novo is an Order that the whole case should be retried or tried de novo or tried anew as if no trial whatever had been had in the first instance… This Court is not only a superior Court but it is also the most superior of the Courts in this country. Once it makes an order for either the trial, or retrial, or new trial, of the Appellant as the case may be, that order has now the backing of the Constitution and it will then be futile to argue that having declared the first trial a nullity a retrial cannot be ordered.”

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ORDER OF RETRIAL APPROPRIATE ORDER A COURT SHOULD MAKE WHEN A TRIAL HAS BEEN DECLARED A NULLITY

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“It is common knowledge that this Court is a Superior Court of record, in fact the highest Superior Court. Since the whole trial has been declared a nullity, which in short means that the appellant has never been tried, the relevant and appropriate order to make in the circumstance, taking the gravity of the offence and the interest of justice into consideration is the one for a fresh trial of the appellant. The lower Court is a superior Court of record as well and therefore draws from Section 36(9) of the 1999 Constitution as amended which is in pari materia to Section 33(9) of the 1979 Constitution. The Constitution remains our supreme law and by virtue of Section 36 (9) therein subsumes the powers which ensure to the lower Court under Section 19 (2) of the Court of Appeal Act. See Per Musa Datt1jo Muhammad, J.S.C in Omosaye V. State (2014) LPELR-22059(SC).”

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NULLITY MEANING OF NULLITY

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“What I have been grappling to put across was well set out by the Court in the case of Lasisi v State (2013) 12 NWLR (Pt.1367) as follows: –
The term nullity means nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect. A nullity in law is an act which is avoid and lacking of any legal effector consequence whatsoever. It is beyond remedy. The act is not only bad but is incurably bad. In the instant case, the appellant was not arraigned. Thus in law, the appellant had not been tried on the charge of murder with which he was charged. The nullity of the purported trial does not in any way affect the charge against the appellant.

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ORDER OF RETRIAL GUIDING PRINCIPLES FOR ORDERING A RETRIAL IN CRIMINAL CASES

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“The concerns of the appellant as to whether the witnesses would still be available, the possible absence of the evidence and exhibits having been destroyed would not change the course of events clearly mapped by the operating law, specifically provided under Section 3 (1) (b) of the Decree. Again to be noted is that the passage of time of the event, the purported trial, appeal and impending retrial go to no issue since the law has directed what should happen upon the dissolution of the Robbery and Firearms Tribunal wherein the appellant was arraigned and tried. This case on all fours with the present, capturing this issue of passage of time is that of Erekanure v State (1993) 5 NWLR (Pt.294) where this Honorable Court held per Kutigi JSC (as he then was) of blessed memory at page 398:
In this case clearly the evidence taken as a whole discloses a substantial case against the appellant and there are no special circumstances which would render it oppressive to put him on trial a second time the fact that the offence was committed in November 1980 notwithstanding. See Abobundu v The Queen (1959) 4 FSC 70; (1959 SCNLR 162. The appellant is not serving any prison sentence when he is kept in prison custody all these years. Apart from the fact that people accused of capital offences are not normally granted bail, the appellant is kept in prison custody for his own safety too. I cannot therefore decline to order a retrial because of that, if on the other hand because of this factor, prosecution witnesses are no longer available, then the authorities in the State’s Ministry of Justice should know what to do”.
The Court of Appeal rightly ordered for a retrial in line with Lasisi v State (supra) that: –
The principles laid down for ordering a retrial in criminal cases are:
a) That leaving aside the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantive case against the appellant;
b) That there are no special circumstances as would render it oppressive to put the appellant on trial a second time;
c)That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial;
d)That to refuse an order of retrial would occasion a greater miscarriage of justice then to grant it;
e) The reason for declaring the trail a nullity and the overall interest of justice are also relevant.
In the instant case, the appellant had been in custody since 2002. But when the circumstances of both the appellant and the deceased victim are considered together the order of retrial made by the Court of Appeal was not oppressive.

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ORDER OF RETRIAL WHETHER AN ORDER OF RETRIAL IS AN ACADEMIC EXERCISE

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“Clearly, it is out of question to classify the retrial as an academic endeavor in the prevailing circumstances of this case where the offence is that of armed robbery, the appellant, some military personnel trained by Government to protect its citizens and the same skills and weapon provided by the citizens represented by their government is turned around to rob the same citizens. The offence is far from trivial and taking the holistic interest of justice in mind, a miscarriage of justice would be occasioned if the order of retrial is not carried out. The cases of Mmamman v FRN (2013) 6 NWLR (Pt.1351) 569; Audu v A.G. Federation (2013) 8 NWLR (Pt.1355); Imegwu v Okolocha (2013) 9 NWLR (Pt.1359) 347 at 372-373, wherein this court warned against courts spending precious judicial time on issues that are academic or hypothetical are not applicable to the case in hand which has presented peculiar circumstances that just cannot be wished off or treated with levity. This is because the appellant being a military personnel needs have the trial properly conducted in a court of competent jurisdiction to show the light where a Nation expects a bounden duty to its citizen to underscore the point that citizens are protected no matter the cost. The corollary is that if upon the retrial the innocence of the appellant is established that would also proffer lessons that no matter how long it takes, the innocent would be so displayed and acknowledged.”

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ATTORNEY GENERAL OF A STATE POWERS OF THE ATTORNEY-GENERAL OF A STATE

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“With all deference to the learned Justices of the lower Court, they seem by this order to have usurped and constricted the discretionary powers of the Attorney-General of Akwa-lbom State vested clearly by Section 211 of the said 1999 Constitution that provides –
211(1) The Attorney-General of a State shall have power:
a.to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court-martial in respect of any State offence created by or under any law of the House of Assembly;
b. to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person
The powers conferred upon the Attorney-General of a State under subsection (1) of this Section may be exercised by him in person or through officers of his Department
(3) In exercising his powers under this Section, the Attorney-General of a State shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process.

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POWER OF THE ATTORNEY GENERAL WHETHER THE COURT OF APPEAL CAN EXERCISE ITS POWERS TO CONTROL AND CONSTRICT THE PROSECUTORIAL POWERS OF THE ATTORNEY-GENERAL

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“That power is only exercisable in relation to the Courts or judicial authorities over which it exercises its supervisory powers. The lower Court, under Section 15 of its enabling statute, certainly has no powers to exercise its powers either to usurp, or to control and constrict the prosecutorial powers of the Attorney-General under Section 211 of the Constitution. This Court had made the point clearly in The State v. S. O. Ilori & Ors. (1983) 2 SC 155 and Ezomo v. Attorney-General Bendel State (1986) LPELR – 1215 (SC). At pages 18 – 19 of his judgment, in Ezomo’s case (supra), Aniagolu JSC stated thus –
– The Attorney-General has the power under the Common Law to discontinue criminal prosecutions. This Court found it necessary to make that clear in the State v. S. O. Ilori and 2 others (1983) 2 SC 155 where it construed Sections 160 and 191 of the 1999 Constitution. At pages 178 – 9 the Court held that: –
The pre-eminent and incontestable position of the Attorney-General, under the Common Law, as the Chief Law Officer of the State, either generally as a coupled with grave responsibilities.”

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POWERS OF THE ATTORNEY GENERAL WHETHER AN APPELLATE COURT CAN IN THE GUISE OF AN ORDER FOR RETRIAL ISSUE CONSEQUENTIAL ORDERS TO CONTROL OR CONSTRICT THE POWERS OF THE ATTORNEY-GENERAL TO DISCONTINUE A CRIMINAL MATTER ORDERED TO BE RETRIED

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“Sections 160 and 191 of the 1979 Constitution are now replicated in, and in pari materia with, Sections 174 and 211 of the 1999 Constitution. No appellate Court, in view of the authoritative statement this Court made in respect of the powers of the Attorney-General to institute, take over and or discontinue any criminal proceedings, can in the guise of an order for retrial or trial de novo issue consequential orders that will ultimately control or constrict the powers of the Attorney-General to discontinue the criminal matter ordered to be retried. The lower Court, having order retrial or trial de novo, has no business prospectively to meddling in how either the trial Court or the prosecutorial authorities would exercise their respective discretions.”

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ORDER OF RETRIAL WHETHER THE FACT THAT A CRIMINAL TRIAL BY A COURT OF FIRST INSTANCE IS A NULLITY PREVENTS AN APPELLATE COURT FROM MAKING AN ORDER OF RETRIAL

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“The promulgation of Section 3 of Decree 62 was a howling echo of the obnoxious Section 2(1) of Decree No. 45 of 1968 which provided –
For avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or any other things whatsoever done or purported to be done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of Section 1 of this Decree or the circumstances under which the same has been made, given or done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation (The Fundamental Rights provisions) shall apply to any matter arising from this Decree or from any enactment or other law repealed as aforesaid.
These provisions were considered in Lakanmi v. Ag. Western Nigeria & Ors (1971) U. I. L. R 201 (SC). This Court construed the provision to be a clear invasion or encroachment on the constitutional separation of Powers, between the legislature and the judicature, and that the provision “was clearly a legislative sentence” on those persons named in the schedule to the said Decree No. 45 of 1968. Thus holding that: in the purported exercise of legislative powers it was not envisaged that the lawmaker, in performance of his legislative functions, would also exercise judicial powers; this Court invalidated the provision of Decree No. 45 of 1968. Though the judgment in Lakanmi v. AG. (supra) was controversially abrogated subsequently by another Decree, the point made that, in the guise of performing his legislative function it was not envisaged that the lawmaker would exercise judicial powers remains immutable and eternal. It is also only on this abuse of legislative function that it was promulgated inter alia into Decree No. 62, particularly in Section 3(l)(b) thereof that –
3. (1) where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge
(a)
(b)shall, in a criminal case, try the matter de novo pursuant to this Decree;
The same Decree No. 62, having in another provision, dissolved the Tribunal and abrogated all proceedings pending before it was a part heard matter. Section 33(9) of the 1979 Constitution, as amended, was at the material time of the vesting of Decree No. 62 remained or was extant. Sections 33(9) of the 1979 are ipssima verba with Section 36(9) of the 1999 Constitution and the provisions are –
No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.
This provision reinforces the power an Appellate Court to order retrial or trial de novo as vested in the lower court by Section 15 of its enabling statute.
I agree with the lower Court’s statement at page 181 of the Record that –
with the provisions of the two constitutions on the point at issue being in pari materia the decision in Kajubo v. The State (supra) covered the provisions of Section 36(9) of the 1999 Constitution as well. Therefore, contrary to the argument of the learned counsel for the Appellants the principles on whether a retrial would be ordered in any given case does not allow being dogmatic that where a retrial is found on appeal to be a nullity a verdict of acquittal without an order of retrial must follow as an inflexible rule. The principle of law which are distillable from the foregoing analysis negate such sweeping proposition of law. In my view, the correct position which is supported by a consensus of authorities on the point is that as a general principle the fact that a criminal trial by a court of first instance is a nullity does not prevent an appellate court from making an order of retrial, the abiding consideration being interest of justice as dictated by special circumstances of a particular case.”

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JUSTICE ATTITUDE OF THE COURT ON JUSTICE

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“Equality is justice. I do not think it is just and fair that a party guilty of inordinate delay should benefit from his own iniquity by an order of retrial or trial de novo.

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CASES CITED

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None

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999

2. Court of Appeal Act. Cap C.36 LFN 2004 Decree No. 45 Of 1968

3. Robbery and Firearms (Special Provisions) Act Cap 398 1990 LFN

 

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