CORAM
PARTIES
INSPECTOR JOHN ONWE APPELLANTS
THE STATE
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant in this appeal was a serving Police Inspector attached to the State C.I.D. at Panti, Yaba, Lagos under the Lagos State Police Command. He was initially arraigned along with seven others on two counts of murder and perverting the course of justice contrary to Sections 319(1) and 126(1) respectively of the Criminal Code Law of Lagos State, 2003. He was only concerned with the charge for murder. He was alleged to have caused the death (while in Police custody) of one Ndudiri Onyekwere, a suspect being investigated in a case of armed robbery. After trial commenced and PW1 had testified, it was realised that his plea had not been taken. At that stage, his plea was taken and he pleaded not guilty to the count of murder. PW1 was re-sworn and continued with his testimony. Thereafter PW2 and PW3 testified. After the testimony of PW2 and PW3, the prosecution applied to withdraw the charge. It was withdrawn without objection from the defence on 13/2/2006. On 27/2/2006, the Court was informed that there was an amended charge before it. However the Appellant’s plea was not taken on the amended charge. The amended charge contained a single count of murder against the Appellant alone. The Appellant raised an objection to the amended charge but later withdrew it. After the withdrawal of the objection, the trial continued with the evidence of PW4. The prosecution closed its case. The defence opened and closed its case after which the case was adjourned to 16/2/2007 for the adoption of written addresses. After several adjournments during which learned counsel on 24/5/2007 re-adopted their addresses, the Court on 22/10/2007 observed, “the new charge was not read to the accused person as required by the Criminal Procedure Law.” His plea was thereafter taken. Counsel re-adopted their written addresses and the matter was adjourned to 31/2/2007 for judgment. The judgment was eventually delivered on 6/12/2007. The Appellant was found guilty as charged and sentenced to death by hanging. On appeal to the Court of Appeal, Lagos Division, it was successfully argued on behalf of the Appellant that the failure to comply with Section 215 of the Criminal Procedure Law amounted to a breach of the Appellant’s fundamental rights as guaranteed by Section 36(6)(a) of the 1999 Constitution and rendered the entire proceedings a nullity. In a considered judgment delivered on 1st February, 2013, the lower Court quashed the Appellant’s conviction and sentence and ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment to another judge for a fresh trial. It is based on this that the Appellant has further appealed to this Court.
HELD
Appeal Allowed
ISSUES
Whether the order for retrial made by the Honorable Court of Appeal without giving any reason; nor considering the circumstances of the Appellants case was proper.
RATIONES DECIDENDI
ORDER OF RETRIAL – DUTY OF COURT BEFORE MAKING AN ORDER OF RETRIAL
“It is settled principle of law that before an order of retrial is made, it is necessary to consider the proceedings of the trial Court and to examine the evidence led as well as the entire circumstance of the case. See: Eyokoromo & 1 Or v. The State (1979) 6-9 S.C. (reprinted) 3 at 10-11, Yesufu Abodundu & Ors v. The Queen (1959) 1 NSCC 56 at 60, Edibo V. The State (2007) All FWLR (Pt. 384) 192, Salisu Yahaya v. The State (2002) 2 SC (Pt. 1) 1 at 13.
ORDER OF RETRIAL- PRINCIPLES GOVERNING THE ORDER OF RETRIAL IN CRIMINAL CASES
“The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the Court must be satisfied:-
(a) that there has been an error in Law (including the observance of the Law of evidence) or an irregularity in the procedure of such a 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 accused.
(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the second time.
(d) 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 and;
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.
All these factors must co-exist before a case may be sent back for retrial. See:- Abodundu V. Queen (1959) SCNLR 162; Ankwa V. The State (1969) 1 All NLR 133; Akinfe V. The State(1988) 3 NWLR (Pt. 85), Dike V. The State (1996) 5 NWLR (Pt. 450) 553; Ganiyu V. The State (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial. This is the state of the Law.”
ISSUE OF PLEA AND ARRAIGNMENT- WHETHER THE ISSUE OF PLEA AND ARRAIGNMENT CALLS FOR THE EXERCISE OF DISCRETION
“While it may be conceded that the issue of plea and arraignment under Section 215 of the Criminal Procedure Law is fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity, it does not call for the exercise of discretion as was erroneously done by the Court of Appeal. The Courts of Law should guide against the abandonment of their traditional and constitutional role of being an umpire between parties to a dispute. The Court must confine itself to the issues raised by the parties. Each party has a right to have dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. This Court, (The Supreme Court) stated what the duty and the role of a Court is. See:- Mufutau Bakare V. The State (1987) 3 S.C. 1 at 36. The role of a Court is to try all the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case. See also:- Moses Dakuma V. The State (1936) 4 S.C. at 24; Chief Dr. (Mrs.) Olufunmilayo Ransome-Kuti & Ors V. Attorney-General Of The Federation Commissioner For Justice & Ors (1985) 6 S.C. 246 at 291.”
ORDER OF RETRIAL IN CRIMINAL CASES – POWER OF THE COURT OF APPEAL IN ORDERING A RETRIAL IN CRIMINAL CASES
“This Court, in the case of Eyorokoromo & 1 Or. v. The State (1979) 6 9 SC (reprint) 3 at 10 11 did spell out the power of the lower Court relating a retrial in criminal cases and said:-
“Now the power of the Court of Appeal to order a retrial in criminal cases is conferred by Section 20(2) of the Decree in identical words with Section 26(2) of the Supreme Court Act. It follows therefore that the principles in Yesufu Abodundu 4 Ors v. The Queen (1959) 1 NSCC 56 at 60 which are guiding principles under which this Court will order a retrial, are applicable in the Court of Appeal in exercise of their discretion under Section 20(2) of the Decree. To exercise that discretion judicially call for the examination by the Court of Appeal of the whole record of proceedings of the trial Court to ascertain whether or not the evidence and the circumstances of the case came within those principles. On the face of the records, it has not been shown that the Court of Appeal examined the evidence before ordering a retrial and did not give its reasons for a retrial.”
ORDER OF RETRIAL – CONDITION PRECEDENT FOR THE COURT OF APPEAL TO ORDER A RETRIAL
“In other words, the lower Court before it could be in a position to order a retrial, it must comply with the guiding principles as laid down by this Court in the case of Yesufu Abodundu 4 Ors. v. The Queen (1956) NSCC Vol. I page 56 wherein it was held that the principles must also all co-exist conjunctively.”
ORDER OF RETRIAL – PRINCIPLES GUIDING AN ORDER OF A RETRIAL
“In the same authority of Yesufu Abodundu & Ors. v. The Queen (supra) at page 60 of the report for instance, this Court said:-
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied (a) there has been an error in law (including the observance of the law of evidence) or on irregularity in procedure of such a character that on the one hand that the retrial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11(1) of the ordinance; (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 a trial a second time; (d) 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 or the appellant, are not merely trivial and (e) that to refuse to order for retrial would occasion a greater miscarriage of Justice than to grant it.”
See also the decisions in the cases of Edibo v. The State (2007) All FWLR (Pt. 384) 192 and Salisu Yahaya v. The State (2002) 2 SC (Pt. 1) 1 at 13.”
ORDER OF RETRIAL – WHETHER AN ORDER OF RETRIAL CAN BE AUTOMATIC ONCE THE TRIAL IS A NULLITY
“As rightly submitted by the learned counsel for the appellant therefore, when the entire circumstance of the case is taken together, the retrial order made will certainly be prejudicial to the appellant. This is not withstanding the fact that the charge against the appellant is grave and the evidence is strong. See the case of Samaila Umaru v. The State (2009) MJSC 114 at 125 – 126 where this Court held and said:-
There is no doubt that the charge against the appellant and his co-accused were grave and serious and the evidence rather strong. It is true that the learned trial Judge misapplied the fundamental principle of the Constitutional law where the trial proceeded in the absence of the appellant’s counsel and I agree that the approach of the learned trial Judge had rendered the trial a nullity. In my view considering all the circumstances of this case and in the overall interest of Justice including the fact that the appellant has been in prison custody since August 2001 together with the fact that the witnesses who testified may not be found to testify, a retrial will be oppressive on the appellant. The justice of this case demands that the appellant should not go through the ordeal of a retrial again especially when he had served a substantial part of his sentences. In the case Ereko Nure v. The State (1993) 3 NWLR (Pt. 294) 25, Olatawura JSC observed at page 394:’I am of the firm view that retrial”, trial”, “trial denovo” or “new trial” can no longer be automatic once the trial is a nullity. Each case must be considered in the peculiar circumstances which forms the background!’ As mentioned above, the right of the appellant has to be protected from prejudice, in other words, an order for retrial cannot be made in a situation where the appellant is exposed to prejudice. In the instant case, since the appellant has spent a substantial part of his sentence imposed by the trial Court, it will be oppressive for the appellant to be tried for the send time.”
The same principle was applied by this Court in the earlier case of Okegbu v. State (1979) All NLR 200.”
ORDER FOR RETRIAL- FACTORS THE COURT MUST TAKE INTO CONSIDERATION BEFORE MAKING AN ORDER FOR RETRIAL
“It must be stated that where a criminal trial has been declared a nullity, an order for retrial is not automatic. There are various factors that the Court must take into consideration before making such an order. The following conditions must co-exist:
(a) that leaving aside the error or irregularity in the proceeding, the evidence taken as a whole discloses a substantial case against the appellant;
(b) that there are no such 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 than to grant it;
(e) the reason for declaring the trial a nullity and the overall interest of justice are also relevant.
See: Abondundu & Ors v. The Queen (1959) 1 NSCC 56 @ 60 lines 2-20; Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 @ 741-742 G-C; Amos Bode v. The State (2016) 12 NWLR (Pt. 1525) 154”.
ORDER OF RETRIAL – CONSIDERATIONS IN DECIDING WHETHER OR NOT TO ORDER A RETRIAL
“It was held by this Court in Kajubo v. The State (supra) at 744C that the important consideration in deciding whether or not to order a retrial is whether the evidence as a whole discloses a substantial case against the appellant and whether there are or are not such special circumstances as would render it oppressive to put the appellant on trial a second time or to order him to be retried or order fresh hearing. Each case will be determined on its own peculiar facts. See: Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 @ 394-395 H-A.”
PARTIES TO A CASE – WHETHER PARTIES ARE PERMITTED TO APPROBATE AND REPROBATE IN THE CONDUCT OF THEIR CASE
“My Lords, this Court per Ariwoola, JSC, recently stated in Dr. Michael Emuakparor Abeke V. Barr. A. A. Odunsi & Anor. (2013) LPELR-20640 (SC) that –
“parties, as litigants, are not permitted to approbate and reprobate in the conduct of their case. See Ezomo V. A.G. Bendel (1986) 4 NWLR (Pt. 36) 448 at 462; Kayode V. Odutola(2001) 11 NWLR (Pt. 725) 659; (2001) 7 SCM 155; Osuji V. Ekeocha (2009) 10 SCM 72 at 93.”
MATERIAL CONTRADICTIONS IN THE PROSECUTION’S CASE – WHETHER PROOF BEYOND REASONABLE DOUBT IS ESTABLISHED WHERE THERE IS MATERIAL CONTRADICTIONS IN THE PROSECUTION’S CASE
“In Paul Ameh V. The State (1972) 6-7 SC 27, this Court held that when the prosecution presents two versions of one offence charged, then they had failed to prove the guilt of the accused beyond reasonable doubt. The trial Court is obligated not to convict an accused person in the circumstance and to treat the prosecution’s case as unreliable when there are material contradictions in the prosecution’s case. See Enahoro V. The Queen (1965) NMLR 265; Kalu V. The State (1988) 4 NWLR (Pt. 90) 503; Ukut V. The State (1995) 9 NWLR (Pt. 420) 392. In the face of material contradictions, there can be no proof beyond doubt in a criminal proceeding.
PROOF BEYOND REASONABLE DOUBT- EFFECT OF FAILURE OF THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT
“The failure of the prosecution to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See Ameh V. The State (supra), Jua V. The State (2010) 4 NWLR (Pt. 1184) 217 SC.”
CONTRADICTION IN PROSECUTION’S EVIDENCE – EFFECT OF CONTRADICTION IN THE PROSECUTION’S EVIDENCE
“It was held in Paul Ameh V. The State (supra) that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole or its totality. When therefore pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See Boy Muka V. The State (1976) 10-11 SC 305.”
ORDER OF RETRIAL- INSTANCE WHEN AN APPELLATE COURT WILL ORDER A RETRIAL
“In the recent case of Ganiyu V. The State (2013) LPELR-20334 (SC) M. D. Muhammad, JSC, stated and I agree:
“Generally, it is the consensus that an appellate Court will order a retrial in the sense that the procedural requirements of the law are not complied with the trial Court and the appeal is allowed on that ground and it is clear from the record of proceedings as a whole that the evidence discloses a substantial case for a proper trial of the Accused: Edache V. Queen(1962) 1 SCNLR 22; Adisa V. A.G. Western Nigeria (1965) 1 ALL NLR, 412; and Ewe V. The State (1992) 6 NWLR (Pt. 264) 147 at 157.”
ORDER FOR RETRIAL – INSTANCES WHERE THE COURT WILL NOT ORDER A RETRIAL
“I should think the order for fresh trial, in the face of evidence which prima facie cannot sustain conviction, is oppressive, preposterous and a travesty of Justice. In James Ikhane v. C.O.P. (1977) 6 SC 78; (1977) ALL NLR 234 this point was poignantly re-stated that in arriving at the decision to order retrial the appellate Court should advert its mind to the evidence on which the Accused was tried. If the evidence leads to possible doubt, or create reasonable doubt, an order of retrial is not appropriate. It will be oppressive to do so in the circumstance. That is why Nnamani, JSC stated –
“An order of retrial inevitably implies that one of the parties is being given another opportunity to re-litigate the same matter and certainly before deciding to make such an order – an appellate Tribunal should satisfy itself that the other party is not being wronged to such an extent that there would be miscarriage of justice.”
See Bakare V. Akpena (1986) NWLR (Pt. 33) 1.
Both law and equity insist that an appellate Court should be reluctant to order retrial if that will enable a party improve his battered position, and if it will further prolong the litigation unnecessarily. Public policy favours an end to litigation. Constitutionally, an order of retrial in a criminal proceeding is prima facie an aberration or negation of the right assured to the accused person by Section 36(4) of the Constitution. That is, whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to fair trial within a reasonable time by a Court. Where from the totality of the evidence at the trial the appellate Court can do justice between the parties, and bring litigation to an end, an order for fresh trial is neither the best not proper. See Ejindu V. Obi (1997) 1 NWLR (Pt. 483) 505; Okeowo V. Migliore (1979) 11 SC 138; (1979) NSCC 138; Sanusi V. Ameogun (1992) 4 NWLR (Pt. 237) 527 at 556; Adeyemo V. Arokopo (1988) 2 NWLR (Pt. 79) 703 at 711.
Even in a murder case, which carries death penalty as the instant case, a retrial will not be ordered to assist the prosecution to fill in the lacuna noticed during the abortive trial, or mistrial. See Erekanure V. The State (1993) SCNJ 13; (1993) NWLR (Pt. 274) 385″.
ORDER FOR RETRIAL – TEST FOR ORDERING RETRIAL WHERE THERE HAD BEEN A MIS-TRIAL FOR NON-COMPLIANCE WITH MANDATORY PROCEDURE IN CRIMINAL PROCEEDINGS
“An order for fresh trial, trial de novo or retrial is not automatic or a matter of course, once the trial is declared a nullity. Each case must be considered in its peculiar circumstances which form its background. When a trial is declared a nullity an order of retrial shall only be made if and only if the interest of justice so demands. See Edache V. The Queen (supra); Kajubo V. The State (1988) 1 NWLR (Pt. 73) 721.
Abdulahi Mohammed V. The State (2013) 218 LRCN (Pt. 2) 48 has a criminal offence with death penalty as the sentence. It was held that where an order of retrial would be oppressive, the order should not be made. Mohammed, JSC (as he then was) at page 59 of the report made a significant statement thus –
“Looking at the case of the Appellant under condition (c) earlier quoted in Abodundu V. The Queen (1959) 1 NSCC 56, the Appellant having spent 14 years in custody as at when this appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time as ordered by the Court below. It is therefore my view that in the circumstances of the present case, it would definitely occasion greater miscarriage of justice if the order of retrial made the Court below is upheld and affirmed this Court. See Okoduwa V. The State (1988) 2 NWLR (Pt. 76) 333; Okegbu V. The State (1979) 11 SC 1; Barmo V. The State (2000) 1 NWLR (Pt. 641) 424; Okere V. The State(2001) 2 NWLR (Pt. 697) 397; Sumaila Umaru V. The State (2009) 8 NWLR (Pt. 1174) 134 at 145-147; (2009) 169 LRCN 1, where Musdapher, JSC (as he then was) in a similar situation as in the present case refused to uphold any order of retrial by the Court of Appeal.”
Fourteen years incarceration, between the date the appellant was taken into custody and the date the appeal was eventually heard was in Abdullahi Mohammed V. The State(supra), considered oppressive for an order of retrial to issue. This Appellant has been in custody since 2002. As at today he would have been in custody for 15 years. This Court has over the years cited with approval the five-way test for ordering retrial where there had been a mis-trial for non-compliance with mandatory procedure in criminal proceedings as enumerated in Abodundu V. The Queen (1959) SCNLR 162. That is, that the Appeal Court must be satisfied:-
“a). that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one 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 special circumstances as would render it oppressive to put the appellant on trial a second time;
d). that the offence or offences of which the appellant was convicted, or the consequences to the appellant of any other person of the conviction or acquittal of the appellant, are not merely trivial; and
e). that to refuse an order of retrial would occasion a great miscarriage of justice than to grant it.”
This Court in Damina V. The State (1995) 8 NWLR (Pt. 415) 513 at 534-535, held that the above circumstances must co-exist before an order of retrial is made. The corollary of situation (e), read together with (b) & (c), should be where to grant the order of retrial would occasion a greater miscarriage of justice than to refuse it. That was the situation in Abdullahi Mohammed V. The State (supra).”
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF IN A CRIMINAL CASE
“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.”
ORDER FOR RETRIAL- DUTY OF COURT IN MAKING AN ORDER FOR RETRIAL
“To subject the Appellant to another trial on the pieces of evidence that are so contradictory and may at the end lead to his acquittal, will serve no useful purpose. To make an order for retrial, the appellate Court must advert its mind to the evidence on which the accused was found guilty. Where the totality of the evidence leads or creates reasonable doubt, an order of retrial is inappropriate. It will clearly be oppressive to subject an accused to another trial. It is in the public interest that there should be an end to every litigation. Where from the available evidence at the trial, the appellate Court can do justice between the parties by bringing the litigation to an end, an order for retrial is inappropriate.”
CASES CITED
Not Available
STATUTES REFERRED TO
Criminal Code Law of Lagos State, 2003|Criminal Procedure Law|