Propriety of Order of Re-trial in Criminal Cases
Facts The Appellant, then a serving Police Inspector attached to the State C.I.D, Panti Yaba, Lagos was arraigned alongside seven others on two counts of murder and preventing the course of justice, contrary to Sections 319(1) and 126(1) respectively of the Criminal Code Law of Lagos State, 2003. He was alleged to have caused the death of a certain Ndudiri Onyekwere (while in police custody), 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.
During trial and after the testimony of PW2 and PW3, the prosecution applied to withdraw the initial Charge and same was withdrawn without objection from the defence.
Nevertheless, on 27/2/2006, the attention of the Court was drawn to the amended Charge, but the Charge which contained a single count of murder against the Appellant, was neither read to him nor his plea taken. Trial continued on the Amended Charge. Parties concluded their cases, adopted their addresses and judgement delivered; the Appellant was found guilty and sentenced to death by hanging. Being dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal, where it was successfully argued on his behalf that the failure to comply with Section 215 of the Criminal Procedure Law amounted to a breach of the Appellant’s fundamental rights. The lower Court quashed the conviction and sentence of the Appellant, and ordered that the case be remitted to the Honourable Chief Judge of Lagos State for re-assignment to another judge for fresh trial. The Appellant further appealed to the Supreme Court.
Issue for Determination The sole issue for determination was:
Whether the order for re-trial made by the Court of Appeal without giving any reason or considering the circumstances of the Appellant’s case, was proper?
Arguments The Appellant submitted that, the lower Court did not provide a basis for ordering a re-trial and none can be deduced from its judgement. Relying on the case of YESUFU ABODUNDU & ORS v THE QUEEN (1959) 1 NSCC 56 AT 60, it was further submitted by Counsel that all the conditions laid down by the Court in the case referenced, must exist conjunctively before an order of re-trial can be made, and that since the facts did not co-exist in the instant appeal, the order of re-trial/fresh trial was not proper.
For the Respondent, it was contended that the Court of Appeal complied with the guiding principles for an order of re-trial. Learned Counsel therefore, urged the Supreme Court to affirm the order of fresh trial made by the Court of appeal and dismiss the appeal.
Court’s Judgement and Rationale In determining the appeal, the Court noted the laid down principles governing an order of re-trial in criminal cases. A Court must be satisfied that: (a) there had been an error in law or an irregularity in the procedure; (b) leaving aside the error, the evidence taken discloses a substantial case against the Accused person; (c) no special circumstance to render it oppressive to put the Accused person on a trial the second time; (d) the offence (s) which the Appellant was convicted are not merely trivial; and (f) to refuse an order for a re-trial would occasion a greater miscarriage of justice than to grant it. The above circumstances must co-exist before an order of re-trial is made.
An order for fresh trial or trial de novo 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 forms its background. Where an order of re-trial would be oppressive, the order should not be made. ABDULLAHI MOHAMMED v THE STATE (2013) 218 LRCN (PT. 2) 48. The Supreme Court agreed with the submission of Counsel for the Appellant that, 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. Therefore, all the factors must co-exist before a case may be sent back for re-trial. ABODUNDU v THE QUEEN (1959) SCNLR 162.
Applying the stated principle of law, the Court noted that the important consideration in deciding whether or not to order a re-trial, is whether the evidence as a whole, discloses a substantial case against the Appellant and whether there are such special circumstances as would render it oppressive to put the Appellant on trial a second time or to order him to be re-tried. KAJUBO v THE STATE (1988) 1 NWLR (PT.73) 721–742 G-C. In this case, an examination of the proceedings of the trial Court, shows that all the stated factors did not co- exist. The Court of Appeal abandoned all other issues in the appeal, and considered only the issue No. 2 relating to Arraignment under Section 215 of the Criminal Procedure Law. Upon finding that Section 215 was not complied with by the trial Court, the Court of Appeal quashed the trial, conviction and sentence and ordered a fresh trial. The Lower Court did not consider and resolve the first issue in the appeal, relating to material contradictions in the evidence upon which the Appellant was tried and convicted. The Court of Appeal, not being a final Court, was enjoined to consider and resolve all issues raised in the appeal.
Before making an order of fresh trial, the Appellate Court ought to have considered whether the evidence at the trial High Court justified the order for fresh trial. In arriving at a decision to order a re-trial, the Appellate Court should consider the evidence on which the accused person was tried. If the evidence leads to possible doubt or creates reasonable doubt, an order of re-trial is not appropriate. The order for fresh trial of the Appellant in this case, was made notwithstanding the bad state of the evidence led at the trial and the glaring material contradictions in the evidence of the Prosecution, which should have been resolved in favour of the Appellant. The Court of Appeal did not consider the record of proceedings as a whole, and satisfy itself that the evidence disclosed a substantial case for proper trial of the Appellant.
Their Lordships opined that, to subject the Appellant to another trial on the pieces of evidence that were contradictory which may lead to an acquittal, would serve no useful purpose. Having concluded that the Arraignment of the Appellant was faulty and rightly setting aside the judgement of the trial Court, in the absence of and co-existence of the necessary factors governing an order of re- trial, there was no justifiable reason for the Court of Appeal to order a fresh trial of the Appellant who had been in custody since 2002.
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 nor proper. EJINDU v OBI (1997) 1 NWLR (PT. 483) 505. Even in murder cases which attract death penalty as in this case, a re-trial will not be ordered to assist the Prosecution to fill the lacuna noticed during the abortive trial or mistrial. When a trial is declared a nullity, an order of re-trial shall only be made, if and only if, the interest of justice so demands.
On this note, the Supreme Court found the appeal meritorious and allowed same. The conviction and sentence of the Appellant by the trial Court for murder was set aside, and the order remitting the case to the Chief Judge for re- assignment for fresh trial was also set aside. In its place, an order discharging and acquitting the Appellant on Charge No. ID/38C/2003 was entered in favour of the Appellant.
Appeal Allowed.
Representation: Ocha Ulea Ede, for the Appellant
A. Oshiwusi (Ms) D.D., D.P.P. Office, Lagos State Ministry of Justice; O.A. Olugasa, C.S.C., Lagos State Ministry of Justice for the Respondent.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))
"IN ARRIVING AT A DECISION TO ORDER A RE-TRIAL, THE APPELLATE COURT SHOULD CONSIDER THE EVIDENCE ON WHICH THE ACCUSED PERSON WAS TRIED. IF THE EVIDENCE LEADS TO POSSIBLE DOUBT OR CREATES REASONABLE DOUBT, AN ORDER OF RE-TRIAL IS NOT APPROPRIATE"