Just Decided Cases

HARUNA IBRAHIM V THE STATE

Legalpedia Citation: (2025-01) Legalpedia 23280 (SC)

In the Supreme Court of Nigeria

Holden at Abuja

Fri Jan 31, 2025

Suit Number: SC.CR/177/2020

CORAM


Mohammed Garba-Justice of supreme court Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Stephen Jonah Adah – Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur-Justice of supreme court


PARTIES


HARUNA IBRAHIM

APPELLANTS 


THE STATE

RESPONDENTS 


AREA(S) OF LAW


CONSTITUTIONAL LAW, CRIMINAL LAW, CRIMINAL PROCEDURE, DOUBLE JEOPARDY, APPELLATE JURISDICTION, CRIMINAL CONSPIRACY, EVIDENCE LAW, JUDICIAL DISCRETION, HUMAN RIGHTS

 


SUMMARY OF FACTS

The Appellant, Haruna Ibrahim, along with six others, was arrested by the Nigerian Police on suspicion of being part of a Vigilante Group who had abducted one Alhaji Bello Maikarfi (the deceased) and later killed him. They were subsequently arraigned before the High Court of Justice, Bauchi, on a two-count charge of Criminal Conspiracy contrary to Section 97 of the Penal Code and Culpable Homicide contrary to Section 211 of the Penal Code. The Appellant was specifically charged only in Count One with the offence of conspiracy.

Upon conclusion of the trial, the learned trial Judge, in a judgment delivered on January 29, 2018, discharged and acquitted the Appellant of the crime charged. Dissatisfied with the decision, the Respondent appealed to the Court of Appeal, which allowed the appeal in a judgment delivered on December 20, 2019. The Court of Appeal consequently made an order for the re-arrest and arraignment of the Appellant. Aggrieved by this decision, the Appellant appealed to the Supreme Court.

 


HELD


1. The appeal lacked merit and was dismissed.

2. The judgment of the Court of Appeal delivered on December 20, 2019, was affirmed.

3. The order of the Court of Appeal for the re-arrest and arraignment of the Appellant for a fresh trial before another judge did not violate Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended).

4. The Court of Appeal properly considered all necessary factors before making the order for retrial.

5. The Court of Appeal’s setting aside of the judgment of the trial Court was equivalent to nullifying it, making the original trial deemed not to have existed.

 


ISSUES


1.Whether the order of the Lower Court contained in its judgment of 20th December 2019 directing the re-arrest and arraignment of the Appellant before another High Court Judge in Bauchi after setting aside the judgment of the trial Court does not violate the Appellant’s constitutional right enshrined in Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended).?

 


RATIONES DECIDENDI


DOUBLE JEOPARDY – EXCEPTION TO THE PRINCIPLE AGAINST DOUBLE JEOPARDY:


“The 1999 Constitution of the Federal Republic of Nigeria (as Amended), the bedrock of the law and rights of Nigerian Citizens makes copious provisions aimed at protecting the rights of Accused Persons before, during and after a criminal trial. One of such provisions is ensconced in Section 36(9) which provides thus: 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 JAMILU YAMMAMA TUKUR, J.S.C.

 


DOUBLE JEOPARDY – IMPLICATION OF THE CONSTITUTIONAL PROVISION AGAINST DOUBLE JEOPARDY:


“The implication of the above provision is that unless a Superior Court, usually an appellate Court sitting on appeal on the decision of a trial Court to either convict or acquit an Accused Person, orders a re-trial, a person who has gone through the rigour of a full criminal trial in a properly constituted Court of competent jurisdiction ought not to be retried again. Such a double trial in the absence of a justifying Order of a Superior Court is what is referred to as double jeopardy, which the law frowns upon and which is outlawed by the grundnorm. The Constitution however clearly made allowance for a Court Order of a Superior Court to subject an Accused Person to a re-trial.”– Per JAMILU YAMMAMA TUKUR, J.S.C.

 


RETRIAL – CONSTITUTIONALITY OF AN ORDER OF RETRIAL:


“It is apropros to place on record, pronto and perforce, that an order of retrial is not unconstitutional. The settled position of the law is that once an appellate Court makes an order for a retrial or a new trial de novo or a venire de novo, which entails that the whole case should be retried or tried de novo or tried a new as if no trial had taken place, such an order, no matter the nomenclature and appellation, has the backing of the Constitution. the fons et origo of our laws. This is because, such an order of retrial falls within the perimeter of the elastic provision of Section 36(9) of the Constitution, as amended, which disowns double Jeopardy/trial, as it (the order) takes shelter under the canopy of the proviso: save upon the order of a superior Court' enshrined therein.” – Per OBANDE FESTUS OGBUINYA, J.S.C.

 


RETRIAL – PURPOSE OF THE PROVISO IN SECTION 36(9) OF THE CONSTITUTION:


“In the mind of the law. the object of a proviso. an exception to the main rule which speaks the last intention of a legislator, is to cut down, modify, qualify, trim, relax or limit the powers conferred by the main section of a statute or document or exclude some possible ground of misinterpretation of its extent/scope. It restrains the absoluteness or generality of a section of a law or document. It discloses the proper meaning of a section of law that is submissive to more than one meaning.” – Per OBANDE FESTUS OGBUINYA, J.S.C.

 


RETRIAL – FACTORS TO CONSIDER BEFORE ORDERING A RETRIAL:


“The factors which a Court must consider before making a valid Order for re-trial as laid down in the locus classicus case of ABONDUNDU &4 ORS VS THE QUEEN (1959) 4 FSC 70/71 – 72, (1959) SC NLR 162, and expounded by this Court in several cases are: (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 if the appellant are not merely trivial. (e) That to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it.”– Per JAMILU YAMMAMA TUKUR, J.S.C.

 


RETRIAL – NO REQUIREMENT FOR EXPLICIT DECLARATION OF NULLITY BEFORE ORDERING RETRIAL:


Let me quickly state that there is no requirement that makes the declaration of a trial a nullity, a condition precedent to ordering a re-trial.”– Per JAMILU YAMMAMA TUKUR, J.S.C.

 


RETRIAL – IMPLICIT CONSIDERATION OF FACTORS FOR RETRIAL:


“A careful examination of the decision of the lower Court reveals that these factors though not expressly stated were considered and are indeed present, thus, the lower Court was right to have ordered a re-trial. It may be pertinent to point out here that the first factor laid down in Abondundu’s case, implies that a proceeding may not be stated to be a nullity, but there has been miscarriage of justice, which would serve as a reason to order re-trial, thus putting paid to Appellant’s argument that there must be a declaration that the proceedings were a nullity before a valid order of re-trial can be made.”– Per JAMILU YAMMAMA TUKUR, J.S.C.

 


DOUBLE JEOPARDY – REQUIREMENTS FOR INVOKING PROTECTION AGAINST DOUBLE JEOPARDY:


“The above provision is aimed at protecting citizens from what is known as double jeopardy. For a person to benefit from the provisions, it must be established that he/ she was tried by a Court of competent jurisdiction, that he/she was either convicted or acquitted and the subsequent charge brought is similar to the charge he/she was either convicted or acquitted of.” – Per CHIDI NWAOMA UWA, J.S.C.

 


DOUBLE JEOPARDY – EFFECT OF SETTING ASIDE ACQUITTAL ON PLEA OF AUTREFOIS ACQUIT:


“In the instant appeal, the findings of the trial Court discharging and acquitting the Appellant have been set aside by the Court below before ordering a retrial. The implication is that the trial is deemed not to have existed. In other words, the Appellant was never tried. Thus, the Appellant cannot rely on a nonexistent trial to plea 'autrefois acquit”– Per CHIDI NWAOMA UWA, J.S.C.

 


EFFECT OF SETTING ASIDE – CONSEQUENCE OF SETTING ASIDE A JUDGMENT:


“In conclusion, I must say that I agree with learned senior counsel for the Appellant, Mr. Ikwueto, that the effect of setting aside an action or order arising from the said action is to render the action or order void ab initio, from the very beginning, as if the action or order had never occurred or transpired… In Akpamgbo-Okadigbo & Ors v. Chidi &18 Ors (No 2) (2015) 3-4 SC (Pt 11) 151, a case the learned senior appositely cited, this Court pointedly stated thus:- A nullification by the Supreme Court of the proceedings of a trial Court means that those proceedings, including all the orders made in the course or consequence of the proceedings, never took place. They are completely… off, rendered extract and deemed never to have existed.”– Per CHIDI NWAOMA UWA, J.S.C. (quoting MUHAMMAD, J.S.C.)

 


ORDER OF SETTING ASIDE – EQUIVALENCE TO ORDER OF NULLIFICATION:


“From the above set-out conclusion of the Court below, it is obvious that the Court clearly set aside the judgment of the trial Court before ordering a retrial. The order of setting aside, for all intent and purpose, is an order of nullification.”– Per CHIDI NWAOMA UWA, J.S.C.

 


EVALUATION OF EVIDENCE – FAILURE TO PROPERLY EVALUATE EVIDENCE AS GROUND FOR RETRIAL:


“In conclusion, I agree with the findings and order of the Court below. More so, there is an eyewitness account on the printed records of appeal, of how the accused persons at the trial, members of a vigilante group, the Appellant inclusive, went into the house of the deceased, apprehended him, tied him up, and bundled him into a waiting van. There is also evidence that since the deceased was abducted in his house, and taken away, he has not returned to his house or been seen alive. The trial Court clearly, did not properly evaluate the evidence before discharging and acquitting the accused persons, as rightly held by the lower Court.”– Per CHIDI NWAOMA UWA, J.S.C.

 


FRIVOLOUS APPEALS – ASSESSMENT OF APPEALS WITHOUT SUBSTANTIAL ISSUES:


“I am constrained to say that this appeal was primarily and purposefully brought by counsel in order to have a judgment from this Court as there is clearly no vital and recondite issue/s or point/s of law; substantive or procedural, that would add real value to our legal principles and/or jurisprudence involved in the appeal.– Per MOHAMMED LAWAL GARBA, J.S.C.

 


CASES CITED



STATUTES REFERRED TO


 Constitution of the Federal Republic of Nigeria 1999 (as amended)

 Penal Code

 Court of Appeal Act Cap C. 36 LFN 2004

 


CLICK HERE TO READ FULL JUDGMENT

Esther ORIAH

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