Legalpedia Citation: (2025-03) Legalpedia 17112 (SC)

In the Supreme Court of Nigeria

Fri Feb 7, 2025

Suit Number: SC.740/2013

CORAM

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

PARTIES

NYIAMSON DAVID

APPELLANTS

THE PEOPLE OF LAGOS STATE

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, HUMAN RIGHTS, CRIMINAL LAW AND PROCEDURE, APPEAL, PRACTICE AND PROCEDURE, FAIR HEARING, POLICE INVESTIGATION, EVIDENCE, JUDICIAL DISCRETION, RETRIAL

SUMMARY OF FACTS

On 15th March, 2008, the Appellant was arrested in his house by three policemen in mufti around 3:30 am. The policemen took the Appellant’s co-accused person (the 1st Defendant at the trial Court) with them when they went to arrest the Appellant. At the point of arrest, the 1st Defendant told the Appellant that he had been in police detention and would need the Appellant to stand as surety for his bail. The Appellant therefore followed the policemen to the police station, the Federal Special Anti-Robbery Squad unit, Adeniji Adele Street, Lagos.

At the police station, the Appellant was told to write a statement which he refused but was persuaded to write his bio-data and pay the sum of N120,000 as bail for the 1st Defendant. The Appellant told the police he could only pay N5000 and same sum was collected from him. The Appellant was thereafter taken to a room where he was tortured. The Appellant was detained in the police cell between March 15, 2008 and October 7, 2008 before he was taken to the Magistrate Court. He was thereafter arraigned at the High Court of Lagos State (trial Court) on 29th April, 2009.

At the commencement of the trial, the Appellant pleaded not guilty to the two-count charge of Armed Robbery and Conspiracy to commit Armed Robbery. The prosecution called three witnesses, PW1, PW2 and PW3 and tendered 3 Exhibits (Confessional Statements: P2A, P2B and P3). The Appellant testified by himself without calling any additional witnesses. Upon the conclusion of the trial, the trial Court on 30th September, 2011 convicted the Appellant and sentenced him to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the lower Court. The lower Court found that the prosecution failed to prove the offences of Armed Robbery and Conspiracy to commit Armed Robbery and consequently allowed the Appellant’s appeal. However, rather than discharge and acquit the Appellant, the lower Court ordered a retrial of the Appellant.

The Appellant being further dissatisfied with the judgment of the lower Court has therefore appealed to this Court in a bid to upturn the lower Court’s judgment in his favour.

HELD

1. The appeal was allowed.
2. The order for retrial of the Appellant was set aside.
3. The Appellant was discharged and acquitted.
4. The Court ordered that the Appellant be released from the custody of the correctional centre where he was detained forthwith.

ISSUES

1. Whether the Court of Appeal was right when it ordered a retrial of the Appellant without first considering and determining the relief of discharge and acquittal of the Appellant as sought by the Appellant in his notice of appeal.

2. Whether the Court of Appeal was right when it found and held that the Respondent did not prove the ingredients of the offences the Appellant was charged with, it refused to discharge and acquit the Appellant.

3. Whether from the facts and circumstances of this case, the Court of Appeal was right in law to have ordered a retrial of the Appellant.

RATIONES DECIDENDI

RETRIAL – WHETHER AUTOMATIC WHEN TRIAL DECLARED A NULLITY

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. – Per Kekere-Ekun, JSC

RETRIAL – FACTORS TO BE CONSIDERED BEFORE ORDERING RETRIAL

“(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.– Per Kekere-Ekun, JSC

BURDEN OF PROOF – DUTY OF PROSECUTION IN CRIMINAL TRIALS

It is trite that the duty of the prosecution in any criminal trial is to establish the guilt or culpability of the accused person beyond reasonable doubt. In order to discharge this burden, it is required to establish every ingredient or essential element of the offence charged. This requirement is predicated on the accused person’s presumption of innocence as guaranteed by Section 36 (5) of the 1999 Constitution, as amended. – Per Abubakar Sadiq Umar, JSC

STANDARD OF PROOF – RESOLVING DOUBT IN FAVOR OF THE ACCUSED

In a criminal trial, where the evidence adduced is credible, a conviction may be founded on the evidence of even a single witness. On the other hand, where, upon a consideration of the totality of the evidence before it, one of the ingredients of the offence has not been proved or the Court entertains some doubt as to the guilt of the accused, that doubt must be resolved in favour of the accused, as the prosecution would have failed to discharge the burden of proof. In such a circumstance, the accused person is entitled to an order of acquittal and discharge. – Per Abubakar Sadiq Umar, JSC

FAIR HEARING – CONSEQUENCE OF BREACH OF RIGHT TO FAIR HEARING

Therefore, in the instant case, the lower Court found that there was a breach of the Appellant’s right to a fair hearing arising from the inconclusive cross-examination of PW2, Robert Cosmas, who was the investigating Police Officer from the Federal Special Anti-Robbery Squad. PW2, a key witness of the Respondent had abandoned the case before he was cross-examined by the appellant’s Counsel. This development, as the lower Court rightly opined, rendered the entire proceedings before the trial Court a nullity. – Per Abubakar Sadiq Umar, JSC

ABSENCE OF WITNESS – EFFECT ON PROSECUTION’S CASE

The absence of PW2 is not the fault of the Appellant and thus should not be made to suffer for the inability of the Prosecution to provide vital witnesses to conclude evidence in proof of its case against the Appellant. – Per Abubakar Sadiq Umar, JSC

RETRIAL – SPECIAL CIRCUMSTANCES MAKING RETRIAL OPPRESSIVE

It must be borne in mind that this case began in 2008 and has lingered for about 16 years now. Yet, the fate of the Appellant has remained indeterminate and hanging. This is not supposed to be so, more so that no case has been made out against him and his presumption of innocence has not been tainted by any modicum of evidence beyond reasonable doubt. It is my considered view that the length of time the Appellant has been incarcerated and also the difficulty or near impossibility of procuring vital witnesses if a retrial were to be ordered already discloses a special circumstance that will make a retrial oppressive.– Per Abubakar Sadiq Umar, JSC

RETRIAL – CONSIDERATION OF TIME FACTOR

It is clear that there is a breach of the constitutional provisions on the right of an accused to counsel in a criminal trial, notwithstanding that the appellant agreed to render his defence and to be cross-examined without his counsel being present in it. This breach of the provisions of the constitution is capable of rendering the whole trial a nullity. The learned justices of the Court of Appeal should have considered the length of time the appellant had been incarcerated, the difficulty or near impossibility of procuring vital witnesses if retrial was to be ordered … in line of the case of Abodundu v. The Queen 4 FSC 70; (1959) SCNLR 162… The decision of the Court below cannot therefore stand. Same is allowed by me. The order of retrial is therefore set aside. The conviction and sentences meted out by the trial Court are null and void. I agree with my learned brother that the appellant shall not be retried again for the same offence. The appellant is therefore discharged of the charges preferred against him at the trial Court.– Per Muntaka-Coomassie, JSC

ADMINISTRATION OF JUSTICE – COURTS AS TEMPLES OF JUSTICE

Flowing from the above, I am fully persuaded respectfully that the lower Court regrettably, failed to properly evaluate the factors to be considered before making an Order for retrial. The Courts should not be a forum of oppression but rather a temple of justice and fairness where the individual rights of litigants are protected within the ambit of the law. It will counter the spirit of justice to continue to retry an accused in whom no guile is found for there must be an end to litigation. – Per Abubakar Sadiq Umar, JSC

APPELLATE DISCRETION – EXERCISE OF DISCRETION FOR RETRIAL

ln resolving this vexed question of whether or not the Court below was right to have made an order of retrial after its finding that there were irregularities during the trial, it must be borne in mind that the power to make an order for a retrial is a power that lies within the bosom of an appellate Court’s judicial discretion; which discretion must nevertheless be exercised judicially and judiciously. Thus, in exercising its discretion in favour of making an order for retrial, the paramount consideration of an appellate Court is to ensure that justice is done to both parties and that the power is not exercised in such a manner that it would appear that the Court is only concerned with one party being given the opportunity to remedy a defect in their case. – Per Jummai Hannatu Sankey, JSC

RETRIAL – COEXISTENCE OF FACTORS FOR RETRIAL

It is also the law that all the five conditions stated above in the case of Yesufu Abodundu V. The State (supra) must coexist and so, the absence of any one of them will enure to the benefit of the Appellant. Therefore, as rightly argued by learned Appellant’s Counsel, it is not a given that once a trial has been declared a nullity by an appellate Court, an order of retrial must automatically follow. – Per Jummai Hannatu Sankey, JSC

UNCHALLENGED FINDINGS – EFFECT OF FINDINGS NOT APPEALED AGAINST

I observe that the lower Court, at page 250 of the record of appeal, made a profound finding thus: ‘In all, the prosecution did not prove …….the three-fold ingredients, which it was required to prove, in order to secure a conviction for the said offence.’ The above finding by the lower Court was not appealed against by the respondent. The law is that findings not appealed against are deemed to be correct and accepted by the parties. Such findings are binding on them and the Court. – Per Moore Aseimo Abraham Adumein, JSC

RETRIAL – AVOIDING OPPRESSIVE RETRIALS

The question that arises from the finding of the lower Court, reproduced in this judgment, is what was the essence of ordering a retrial of the Appellant when the elements of the offence were not proved as required by law? The law is that a Court of law has a duty not to speculate. In the circumstances of this case, however, the reasonable answer to the question is that the order of retrial would only enable the Respondent to put the Appellant on a second trial when the ingredients of the offence had not been established in the first trial, and this would render the retrial oppressive to the Appellant. This would occasion a greater miscarriage of justice against the Appellant than to refuse an order for retrial. – Per Moore Aseimo Abraham Adumein, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Nigeria Police Regulations
3. Federal Supreme Court (Appeals) Ordinance, Cap. 229
4. Court of Appeal Act, 2004

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