FRANCIS OMOSAYE VS THE STATE

CORAM

PARTIES

FRANCIS OMOSAYE APPELLANTS

THE STATE

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant and three others were arraigned for the offence of murder. Other accused persons who were represented by counsel pleaded not guilty. The Appellant who was not represented by counsel due to impecuniosity, pleaded guilty. The trial judge summarily tried, found him guilty, convicted and sentenced him to death by hanging. He appealed to the Court of Appeal, where the appeal was heard and allowed with an order of retrial before another judge of Ondo State High Court. The Appellant has further appealed to this court.

HELD

Appeal dismissed

ISSUES

1. Whether the manner the lower court’s consequential order is couched, following the nullification of the entire proceedings of the trial court, should endure?

RATIONES DECIDENDI

ORDER OF RETRIAL-WHETHER AN ORDER OF RETRIAL IS AUTOMATIC ONCE THE TRIAL IS A NULLITY

“However, an order for a fresh trial, new trial, trial de novo or retrial is not automatic once the trial is a nullity. Each case must be considered in the peculiar circumstances which form the background of the case.”
PER IBRAHIM TANKO MUHAMMAD

CRIMINAL TRIAL-WHEN AN ACCUSED SHALL BE ENTITLED TO AN ACQUITTAL

“It is trite law that if on the whole evidence at the conclusion of trial, the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the accused shall be entitled to an acquittal”. PER OLUKAYODE ARIWOOLA

ORDER OF RETRIAL -PRINCIPLES GUIDING THE GRANT OF AN ORDER OF RETRIAL

“Where an appellate court found that a trial was not properly carried out and it will not be justice to discharge the convict, the principles which should guide the courts in making an order of retrial has been well settled in a long line of cases. The locus classicus is Abodunde & Ors Vs. The Queen 4 FSC 70 at 73. In that case this court restated the guiding principles as follows:
“We are of the opinion that before deciding to order a retrial, this court must be satisfied:-
(a) that there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial 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 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 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 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.
PER OLUKAYODE ARIWOOLA

CASES CITED

Joshua Alonge Vs. inspector General of Police (1959) 4 FSC 203 at 2004 perWoolmington Vs DPP (1935) AC 462 at 481;Emmanuel Ebeziako Vs. COP (1963) 1 All NLR61.James Ikhane Vs. Commissioner of Police (1977) All NLR 234; (1977) 6 SC 78;Samaila Umaru Vs. The State (2009) 8 NWLR (Pt.1142) 134Ankwa Vs State (1969) 1 All NLR 133;Okafor Vs. State (1976) 5 SC 13.Yesufu Abodundun & Ors v. The Queen (1959) SCNLR 162 at p.166;Okosun v. The State (1979) 3 – 4 SC. 36;unmeri v. Queen (1961) 2 SCNLR, 198;Owoh v. Queen (1962) 2 SCNLR 409;Okegbu v. The State (1979) 11 SC 1

STATUTES REFERRED TO

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