Legalpedia Citation: (2013) Legalpedia (SC) 01151
In the Supreme Court of Nigeria
Fri Feb 8, 2013
Suit Number: SC. 256/2006
CORAM
EMANUEL OBIOMA OGWUEGBU , JUSTICE, SUPREME COURT(Read the Leading Judgment)
PARTIES
MR. UGOCHUKWU DURU APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The appellant with two others were charged for conspiracy to commit murder and murder of one Maria Adeniyi on the 15th day of July, 2000. They were convicted of the offences and sentenced to death by hanging, dissatisfied they appealed against the decision of trial court in which the lower court allowed the appeal and order a retrial. They now appealed to the Apex Court.
HELD
APPEAL DISMISSED
ISSUES
Whether the lower court was right in ordering a retrial instead of discharging and acquitting appellant.?
RATIONES DECIDENDI
ORDER OF RETRIAL-THE CONDITIONS THAT MUST BE FULFILLED BEFORE AN ORDER OF RETRIAL CAN BE MADE BY AN APPELLATE COURT
(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 the offence(s) 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;
(c) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
(d) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; and,
(e) The reason for declaring the trial a nullity and the overall interest or justice are also relevant.” PER WALTER SAMUEL NKANU ONNOGHEN, JSC
CASES CITED
Kajubo V The State (1988) 1 NWLR (PT.73) 721Uche V The State (1999) 7 NWLR (609) 1
STATUTES REFERRED TO
NONE