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ONWE v. STATE
CITATION: (2017) LPELR-42589(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 30TH JUNE, 2017Suit No: SC.549/2013
Before Their Lordships:
CLARA BATA OGUNBIYI Justice of the Supreme CourtKUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN Justice of the Supreme Court
EJEMBI EKO Justice of the Supreme CourtPAUL ADAMU GALINJE Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court
BetweenINSPECTOR JOHN ONWE - Appellant(s)
AndTHE STATE - Respondent(s)
RATIO DECIDENDI1. COURT - DUTY OF COURT: Duty of Court to consider/pronounce on all issues raised before it
"...The Court of Appeal from above, abandoned all other issues in the appeal, and considered only the issue No 2, on Arraignment, under Section 215 of theCriminal Procedure Law. Upon finding that Section 215 of the Criminal Procedure Law was not complied with by the trial Court, it quashed the trial, convictionand sentence and ordered fresh trial.The Court did not give consideration to the other issues in the appeal. It was contended that the evidence on which the Appellant was tried, was full ofmaterial contradictions. While it may be conceded that the issue of plea and arraignment under Section 215 of the Criminal Procedure Law is fundamental tocriminal 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 bythe Court of Appeal. The Courts of Law should guide against the abandonment of their traditional and constitutional role of being an umpire between partiesto 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 conclusiondictated 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 THEFEDERATION COMMISSIONER FOR JUSTICE & ORS (1985) 6 S.C. 246 at 291.Finally, therefore, the issue of Arraignment was not only issue in the appeal before the lower Court. The other issues in the appeal are left withoutconsideration."Per BAGE, J.S.C. (Pp. 17-19, Paras. C-A) - read in context
2. CRIMINAL LAW AND PROCEDURE - ARRAIGNMENT/TAKING OF PLEA: Whether non-compliance with the procedure of taking plea to a charge can bewaived"The only charge, as it is, the accused pleaded not guilty to was the original charge read and explained to the accused person after the evidence of the PW.1.And as I earlier stated the accused who was throughout represented by counsel had acquiesced in all these procedural mixed-ups. It appears to me onauthority ARIOR 1 v. ELEMO (1983) 1 SCNLR 1; (1983) 1 SC 13 that the accused could waive this procedural right of fair hearing that enured to his benefit.This is a procedural irregularity that can be waived expressly or by conduct. In this case, the accused person and his counsel appeared to have expresslywaived the non-compliance or strict compliance with the procedure of taking plea to the charge he was defending."Per EKO, J.S.C. (P. 40, Paras. A-D) - read incontext
(201
7) LP
ELR-42
589(
SC)
3. EVIDENCE - CONTRADICTION IN EVIDENCE: Whether a trial court is justified in the face of contradictions to treat a case as unreliable"The Respondent's counsel, an officer of the Court, is having difficulties of intra-personal conflict. He is torn between telling the truth and telling lies. He isclearly prevaricating. 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 at462; KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) 659; (2001) 7 SCM 155; OSUJI v. EKEOCHA (2009) 10 SCM 72 at 93."The prosecution charged the Appellant for the murder of NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE, NDUBISI ONYEKWERE, ERNEST NDUBISISONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE. If therefore they led evidence proving the death of NDUBISI ONYEKWERE through PW.4, then anotherversion of the same murder has been introduced. In PAUL AMEH v. THE STATE (1972) 6-7 SC 27, this Court held that when the prosecution presents twoversions 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 anaccused person in the circumstance and to treat the prosecution's case as unreliable when there are material contradictions in the prosecution's case. SeeENAHORO 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 ofmaterial contradictions, there can be no proof beyond doubt in a criminal proceeding."Per EKO, J.S.C. (Pp. 48-50, Paras. F-B) - read in context
4. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Effect of failure of prosecution to prove a case 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. SeeAMEH v. THE STATE (supra), JUA v. THE STATE (2010) 4 NWLR (Pt. 1184) 217 SC."Per EKO, J.S.C. (P. 53, Paras. D-E) - read in context
5. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof in criminal cases"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 andSection 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 reasonabledoubt 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."Per GALINJE, J.S.C. (Pp. 65-66, Paras. E-A) - read in context
6. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial"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 aretrial, 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 theone 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 trialthe 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 acquittalof 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 AllNLR 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, wherethis Court decided that long detention of the accused person is no ground to refuse to order-retrial."Per BAGE, J.S.C. (Pp. 10-11, Paras. D-F) - read in context
7. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Instances where an order of retrial will not be made"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 incriminal 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) ofthe 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 principlesunder 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 exercisethat 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 theevidence 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 Appealexamined the evidence before ordering a retrial and did not give its reasons for a retrial."In the case under consideration, I will not hesitate to say that having concluded that the appellant'?s arraignment was faulty, the lower Court rightly set asidethe judgment of the trial Court and quashed the conviction and sentence of the appellant thereof. However, the Court without any further considerationproceeded and ordered for a fresh trial. In other words, the lower Court before it could be in a position to order a retrial, it must comply with the guidingprinciples 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 principlesmust also all co-exist conjunctively.From the judgment of the lower Court reproduced supra, same did not state any reason indicating that there was proper examination of the evidence andcircumstances of the case before the order for retrial was made.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 thelaw 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 thisCourt 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 theerror or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances aswould 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 theconsequences 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 forretrial 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.From all indications and taking into consideration the entire case as it is disclosed on the record of appeal, the proceedings in this case is not clear cut andstraight forward to warrant the making of an order for fresh trial. This is especially when regard is had to the identity of the victim as relating his name, theperson who identified the corpse to the doctor for post mortem purpose especially in the absence of any police office. Also in addition is the fact that theappellant had been at his trial and appeal for a period of at least 11 years and having been in detention; there is also the problem of availability of witnessesin the case for subsequent trial. The record had also revealed that there was an unauthorized removal and tampering with the corpse of Ernest N. Onyekwerewhen same was removed from the Ikeja General Hospital by the relations of the deceased to the Lagos Hospital without the consent, knowledge or approvalof the police.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 willcertainly 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 thecase 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 learnedtrial Judge misapplied the fundamental principle of the Constitutional law where the trial proceeded in the absence of the appellant's counsel and I agree thatthe 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 ofJustice 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 befound 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 retrialagain 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 JSCobserved 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 inthe 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 theappellant 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 beoppressive 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.In the appeal before us and having regard to the extenuating circumstances of the appellant's denial of the commission of the offence coupled with the PolicePreliminary Investigation report which exonerated the appellant from prosecution, as well as the contradictory evidence of the Prosecution witnesses whotestified before the trial Court, the evidence against the appellant cannot be said to be completely overwhelming."Per OGUNBIYI, J.S.C. (Pp. 23-28, Paras. A-E)- read in context
(201
7) LP
ELR-42
589(
SC)
8. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of 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 musttake 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 acquittalof 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. TheState (2016) 12 NWLR (Pt. 1525) 154.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 theevidence as a whole discloses a substantial case against the appellant and whether there are or are not such special circumstances as would render itoppressive 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 peculiarfacts. See: Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 @ 394-395 H-A.It is pertinent to note and I agree with learned counsel for the appellant that in making the decision to order a retrial in this case, the lower Court did not giveany consideration whatsoever to the guiding factors enumerated above. The Court seemed to be of the view that once the trial at the trial Court was declareda nullity, the only option open to it was to order a retrial. From the authorities earlier referred to such a position with respect is erroneous."Per KEKERE-EKUN,J.S.C. (Pp. 32-33, Paras. A-F) - read in context
9. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guides the court in making an order of retrial"As stated earlier, each case will be decided on its own peculiar facts. If the prosecution had made out a substantial case against the appellant, having regardto the gravity of the offence with which he was charged, a retrial or fresh trial would have been proper notwithstanding the length of time he has spent incustody. I am convinced that in this case, the order of retrial did not meet the justice of the case. See; Mohammed v. The State (2013) 5 NWLR (Pt. 1347) 315@ 328 B-F: Ogboh v. F.R.N. (2002) 10 NWLR (Pt. 774) 21; Amos Bode v. The State (supra)."Per KEKERE-EKUN, J.S.C. (Pp. 36-37, Paras. F-B) - read in context
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SC)
10. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Circumstance where an order of retrial made in respect of an accused person will not beregarded as oppressive"The Court of Appeal, not being the final Court, was enjoined to consider and resolve all issues raised in the appeal. The issues are not trivial. If consideredand resolved in his favour, the Appellant was entitled to an order of discharge and acquittal. Take for instance the submission "that the Statements of theAppellant Exhibits A-A7, the testimonies of PW.1, PW.2, PW.4 and Exhibit P all come from the prosecution. And if these pieces of evidence contradict oneanother, as they have done here, then the contradictions (render) versions of the Respondent on this point untenable and in favour of the Appellant", whichraises the issue of the prosecution's evidence incapable of proving the guilt of the Appellant beyond reasonable doubt. It was held in PAUL AMEH v. THESTATE (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 theaccused person beyond reasonable doubt. The case of the prosecution is considered as a whole or its totality. When therefore pieces of prosecution'sevidence 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.As I shall show anon the Court of Appeal before ordering fresh trial ought to have considered whether the evidence at the trial High Court justify the order forfresh trial. It is apparent that the order for fresh trial of the Appellant notwithstanding the bad state of the evidence at his first trial was perfunctory. TheCourt of Appeal only, in effect, considered whether the trial Court complied with Section 215 of the Criminal Procedure Law. Upon finding that Section 215 CPLwas not complied with the Court of Appeal quashed the trial, conviction and sentence, and ordered fresh trial. It did not consider or resolve the first issue inthe appeal suggesting that the evidence on which the Appellant was tried was full of material contradictions.The Court of Appeal, no doubt was exercising its discretion when it made the order for fresh trial. This is a discretion that must be exercised judicially andjudiciously, and not whimsically or capriciously. In making this order of "fresh trial", the Court of Appeal seemed to have thought that the order for fresh trialwas automatic once it held that the trial did not comply with Section 215 of the CPL of Lagos State.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 thetrial 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 casefor 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."In the instant case, the Court of Appeal did not consider in this case "the record of proceedings as a whole" and satisfy itself if "the evidence disclosed asubstantial case for proper trial of the accused" person. I had earlier reproduced portions of the proceedings. I should think the order for flesh trial, in the faceof 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 appellateCourt 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 ofretrial 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 tomake 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 ofjustice."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 willfurther prolong the litigation unnecessarily. Public policy favours an end to litigation. Constitutionally, an order of retrial in a criminal proceeding is prima faciean 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 acriminal 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 freshtrial 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 noticedduring the abortive trial, or mistrial. See EREKANURE v. THE STATE (1993) SCNJ 13; (1993) NWLR (Pt. 274) 385".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 itspeculiar 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 justiceso 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 ofretrial 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 yearsin 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 asecond time as ordered by the Court below. It is therefore my view that in the circumstances of the present case, it would definitely occasion greatermiscarriage 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; SUMAILAUMARU 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 thepresent 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 ABDULLAHIMOHAMMED 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 wouldhave 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 mandatoryprocedure 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 onehand 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 acquittalof the appellant, are not merely trivial; ande). 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 ismade. 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 justicethan to refuse it. That was the situation in ABDULLAHI MOHAMMED v. THE STATE (supra).In the DAMINA case (supra), like in the instant case, the evidence on the identity of the corpse or body on which the autopsy was carried out was an abysmalfailure. The failure to link the body on which the post mortem examination was carried out to the person allegedly killed by the accused person was held to bea fatal omission. In the instant case, the contradictions in the evidence of PW.3 and PW.4 together with Exhibit L are very material. The trial Court convictedthe Appellant for the murder of EARNEST (ERNEST) NDUBISI ONYEKWERE, whereas the person killed was stated categorically on the charge to be NDUBIRIONYEKWERE. No evidence explained these materially irreconcilable versions. Moreover, the learned trial Judge, like the Judge in the DAMINA case (supra) hadstepped into the arena or offered to provide, gratis, the missing evidence to fill the lacuna. This Court in the DAMINA case, in the circumstances set aside theorder for fresh trial on grounds of substantial miscarriage of justice to the appellant.My Lords, in view of my foregoing analyses, the order of fresh trial made by the Court of Appeal in this case deserves to be, and it is hereby set aside. It isoppressive. It shall occasion substantial miscarriage of justice. I had alluded in this Judgment to the exonerative facts of this case before the Court of Appeal,and reproduced in extenso the portion of their judgment. These facts which the Respondent, as adverse to the prosecution as they are, seemed toacknowledge are the facts which again he has to re-present. The witnesses who contradicted one another cannot resile from their earlier testimonies on oath.Accordingly, the order for fresh trial of the Appellant will not serve the interest of justice. It will be oppressive to put him on further trial on the same set ofevidence."Per EKO, J.S.C. (Pp. 53-63, Paras. F-B) - read in context
11. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Instances where an order of retrial will not be made"Where the prosecution's case is infested with contradictions, clearly the prosecution has failed to prove its case beyond reasonable doubt. The Appellantought to have been discharged and acquitted. This the trial Court did not do. The lower Court, that is the Court of Appeal dwelt only on the aspect of thearraignment of the Appellant and did not consider the case as a whole when it made an order of retrial. This I think is wrong.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 usefulpurpose. 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 ofthe 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 justicebetween the parties by bringing the litigation to an end, an order for retrial is inappropriate."Per GALINJE, J.S.C. (Pp. 66-67, Paras. B-A) - read in context
(201
7) LP
ELR-42
589(
SC)
(201
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ELR-42
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SIDI DAUDA BAGE, J.S.C. (Delivering the Leading
Judgment): This is an appeal against the Judgment of the
Court of Appeal, Lagos Judicial Division in criminal appeal
CA/L/380/2009 delivered on the 1st February, 2013 by the
said Judgment, the Court ordered for a retrial before
another judge nullifying the Judgment of the Lagos High
Court which had convicted and sentenced the Appellant to
death by hanging.
Dissatisfied with the judgment of the Court of Appeal, the
Appellant appealed against the said sentence to this Court,
vide a notice of Appeal dated and filed on 27th February,
2013.
SUMMARY OF THE FACTS
The facts of this case as may be gleaned from the evidence
on record are that:-
"Appellant was a serving Police Inspector attached to
the SCID Panti Yaba Lagos, under the Lagos State
Police Command.
Prior to the appellant being charged to Court, one
Ernest Ndudiri Onyckwere (deceased) was arrested on
the 12th June, 2002, at Onitsha, Anambra State by
one Sergeant Eniola Akinsulere of Alausa Police
Station, Ikeja, also in Lagos State based on a
complaint of armed robbery by one Gabriel Ezeze and
1
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Azubuike Ezeze who were initially 7th and 8th
accused persons charged with perverting the course
of justice contrary to Section 126(1) of the Criminal
Code Law Cap. 32 Volume 2 of Lagos State, 1994,
when the case was initially taken to Court.
Before Ernest N. Onyekwere went to Onitsha where he
was arrested, he alleged that he was beaten by armed
robbers to a state of coma, looked very weak and was
bleeding from the nose. This was alleged to have
happened on 25th May, 2002. One Mrs. Bilikisu
Ismail took him to Jim- Sam hospital al No. 22
Gaskiya Road, Ijora in Lagos. The father of Ernest N.
Onyekwere heard of the armed robbery incident and
the injuries sustained by the son and sent one of the
son to go to Lagos and bring him to Onitsha for
treatment.
This led to the discharge of Ernest N. Onyekwere and
after the discharge from the hospital on 19th May,
2002, it was felt he need further treatment and was
taken away to Onitsha for the treatment at Chinyere
Hospital.
Sgt. Akinsulere Eniola who effected the arrest of
Ernest N. Onyekwere at Onitsha said the deceased
made a statement to him at his office at the Divisional
Crime Branch, denying
2
(201
7) LP
ELR-42
589(
SC)
the allegations against him. Accordingly he was
instructed to transfer the deceased suspect to Panti
C.I.D., Yaba which he did on the 17th June, 2002, by
handing over the said Ndudiri Onyekwere who had
bandages stained with blood on his head and several
parts of his body and one Obiagwu to the IPO from
Panti State CID Panti Yaba in the persons of
Inspector Victor Ukah and Sgt. Abiodun Ogundele,
who look them to their Department. The case was
then assigned to team D9 Section of the SCID Panti
Yaba, Lagos which was headed by the Appellant as the
Team Leader. When Ernest N. Onyekwere was handed
over to the Appellant's team. Appellant asked what
the problem was leading to the injuries and he was
informed by the deceased that he was pushed down
from a moving vehicle and the consequences were the
injuries noticed on him for which he was receiving
treatment in hospital from where he was arrested by
police.
Appellant had six (6) police officers who worked
under him amongst them were Inspector Victor Ukah
and Sgt. Abiodun Ogundele. Investigations
commenced and on 18th June, 2002, Inspector Victor
Ukah and Abiodun Ogundele reported to the
3
(201
7) LP
ELR-42
589(
SC)
Appellant that the deceased took ill during the night
and Appellant directed Inspector Victor Ukah, Sgt.
Abiodun, Sg1. Emmanuel Akpan, Cpl Ola Oladipupo
and Cp1 Kenneth Obayegbo to take the deceased to
the General Hospital, Ikeja for treatment, which they
did.
About four (4) days after the deceased was taken from
the office to the General Hospital for treatment, the
police officers came back to the office to report to the
Appellant that Ernest N. Onyekwere died while
waiting to be attended to by the doctor at the
hospital. Appellant in turn informed his superior
officer, D C, O/C Homicide of the development and the
O/C Homicide, the appel lant and a pol ice
photographer went to the General Hospital Ikeja
Mortuary to see the body, saw the body and
photographed the body and returned to the office.
The police referred the matter to the Homicide
Section and one Supol James Nwakama detailed to
investigate the death of Ernest N. Onyekwere.
The autopsy which was scheduled for 21st June, 2002,
was suddenly shifted to 24th June, 2002.
The body of Ernest N. Onyekwere which was deposited
at the General Hospital Mortuary by the police was
4
(201
7) LP
ELR-42
589(
SC)
removed from the said mortuary to General Hospital
Lagos by the relations of Ernest Onyekwere without
the consent/authority of the police. There were series
of interference with the body of the deceased before
an autopsy was eventually conducted on the body at
the General Hospital Lagos. When the alleged autopsy
was conducted, the same was not carried out in the
presence and or involvement of the police.
No evidence on who identified the body as that of
Ernest N. Onyekwere before the alleged autopsy was
carried out and no result of the autopsy was produced
and made available at the trial of the Appellant in
Court.
Appellant and members of his team was arrested and
asked to make statements which they did. The Police
Preliminary Investigation Report, which was Exhibit
L, exonerated Appellant and recommended the six
officers who were in the team led by the Appellant for
prosecution.
As it turned out, all the six police officers
recommended for prosecution went aground and only
the Appellant was charged to Court, tried and
convicted and sentenced to death by hanging on the
6th December, 2007.
Appeal by the Appellant to the
5
(201
7) LP
ELR-42
589(
SC)
Court of Appeal was allowed on the 1st February,
2013 and rather than grant the order of discharge
and acquittal of the appellant, the Court of Appeal
ordered a retrial of the appellant and without
advancing any reasons and doing so in the Peculiar
circumstances of the case were never taken into
consideration by the Court. It is based on this that the
Appellant has further appealed to this Court."
In compliance with the rules of Court, briefs of argument
were exchanged by the parties. The Appellants brief was
settled by one Ocha P. Ulegede, Esq. and filed on
24/11/1015.
The Respondent's brief of argument was however settled by
E. I. Alakija (Mrs.) D.P.P., Office of the Hon. Attorney-
General and Commissioner for Justice, Lagos State and
filed on 25/1/2016.
On the 7th of April, 2017 when the appeal was heard, both
Counsel representing the two parties, adopted and relied
on their respective brief argument, while the Counsel for
the Appellant urged that the appeal be allowed, a dismissal
was sought for by the Respondent.
For the determination of this appeal, the sole issue raised
on behalf of the appellant from the three grounds of
6
(201
7) LP
ELR-42
589(
SC)
appeal is as follows:-
"Whether the order for retrial made by the Honorable
Court of Appeal without giving any reason; nor
considering the circumstances of the Appellant’s case
was proper."
The foregoing issue was adopted also by the Respondent. In
arguing the appeal, learned Counsel for the Appellant'
submitted that, the lower Court did not provide a basis for
ordering a retrial (fresh trial) and none can be deduced
from its Judgment. The evidence adduced at the trial and
other circumstances of the Appellant's disposition and that
of the prosecution witnesses, the contradictions, the roles
played by the trial Judge and the prosecuting Counsel
which were highlighted were not considered before the
order of retrial was made. 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
7
(201
7) LP
ELR-42
589(
SC)
YAHAYA v. THE STATE (2002) 2 SC (Pt. 1) 1 at 13.
Learned Counsel for the Appellant further submitted that,
all the facts stated must exist conjunctively before an order
of retrial can be ordered.
These factors do not co-exist conjunctively in the instant
appeal and therefore the order for retrial or fresh trial
made is not proper and this Court is urged to allow this
appeal and return a verdict of discharge and acquittal in
favour of the Appellant.
The circumstances of the retrial will be prejudicial to the
Appellant. See:- SAMAILA UMARU v. THE STATE
(2009) MJSC 114 AT 125-126 Paragraphs F-E,
OKEGBU v. THE STATE (1979) All NLR 200. Learned
Counsel finally urged this Court to allow this appeal,
considering the circumstances of this case, discharge and
acquit the Appellant in the overall interest of justice.
In response to the above submission of the Appellant;
Learned Counsel for the Respondent contended that, the
Appellant had brought out the principles governing the
order of retrial as settled by the Supreme Court, in the
cases of YESUFU ABONDUNDU & ORS v. THE QUEEN
(supra), EYOKOROMO & 1 OR v. THE STATE
8
(201
7) LP
ELR-42
589(
SC)
(supra). However, the Court of Appeal, complied with the
guiding principles for an order of a retrial as laid down in
the cases cited above, as follows:-
"(a) Error in Law/irregularity in procedure. The
learned Counsel submits that the proceedings at the
trial Court was found to be faulted with non-
compliance with Section 215 of the Criminal
Procedure Law.
(b) Error in the observance of the Law of Evidence,
the learned trial Judge admitted in admissible
evidence and relied on same to convict Appellant.
(c) Evidence taken at the trial discloses a substantial
case against the Appellant. The evidence indeed
discloses substantial case against the Appellant.
(d) No circumstances rendering it oppressive to put
the Appellant on trial a second time. The Appellant
was sentenced to death. It is the maximum
punishment. This case can be distinguished from the
case of SAMAILA UMARU v. THE STATE (supra)
where the Appellant was sentenced to a number of
years and would have spent a substantial part of his
sentence if a retrial was upheld.
(e) Sole defence witness. The Appellant testified as a
sole defence witness hence there is no
9
(201
7) LP
ELR-42
589(
SC)
question not being able to get his witness to attend
Court to testify in his defence.
(f) Capital offence: The Court of Appeal followed and
observed the principles guiding retrial after
thoroughly examining the record of proceedings at
the lower Court before ordering a retrial."
Learned Counsel for the Respondent finally urged the
Court to make an order of fresh trial as made by the Court
of Appeal. Also to dismiss the Appeal.
The facts of this case is quite simple, and presents no
complexity. The appeal resonates on the Order made by the
Court of Appeal, for a retrial of the case of the Appellant,
before another Honourable Judge, which was subject of
that Appeal.
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
10
(201
7) LP
ELR-42
589(
SC)
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. The learned Counsel for the
Appellant had earlier argued that the lower Court (Court of
11
(201
7) LP
ELR-42
589(
SC)
Appeal) did not provide a basis for ordering a retrial and
none can be deduced from its judgment. The evidence
adduced at the trial and other circumstances of the
Appellant's disposition and that of the prosecution
witnesses, the contradictions, the roles played by the trial
judge and the prosecuting counsel which were highlighted
were not considered before order of retrial is made. It
would be necessary for this Court to consider the
proceedings of the trial Court and to examine the evidence
led as well the entire circumstance of the case. All the
factors stated in the case must exist conjunctively before an
order of retrial can be ordered. From the record of
proceedings the following can be discerned namely:-
"(1) The Appellant was arrested in June, 2002 and he
has been in detention since then, a total of about
11-12 - years
(2) The Police Preliminary investigation, Exhibit L,
before the trial Court exonerated the appellant from
prosecution and recommended the six Police Officers
whom were in the appellant’s team and detailed by
the appellant to investigate the deceased for
prosecution.
(3) The unauthorized removal
12
(201
7) LP
ELR-42
589(
SC)
and tampering with the corpse of Ernest N.
Onyekwere when the same was removed from the
Ikeja General Hospital to the Lagos Hospital without
the consent, knowledge or approval of the police by
the relatives of the deceased.
(4) Absence of any Police Officer and a person to
identify the corpse of deceased as the body of Ernest
N. Onyekwere to the Doctor who performed the
autopsy.
(5) Absence of any Autopsy Report on the body
purported to be that of Ernest N. Onyekwere.
(6) The fact that appellant denied the commission of
the offence.
(7) The fact that appellant maintained uncontradicted
that he never worked at the CID Ikeja where the
offence was alleged to have taken place but at Panti
SCID. Yaba
(8) The unchallenged version of the existing injuries
which deceased sustained consequent on the alleged
pushing from a moving vehicle in May 2002, less than
a month before the alleged death of deceased.
(9) The time lag between the commission of the
alleged offence and the time the retrial would take.
(10) The difficulties in procuring witnesses on the
both sides to testify before the Court in a retrial.
(11) The fact that
13
(201
7) LP
ELR-42
589(
SC)
some of the witnesses may never be traced, may have
died and or may be unwilling to come forward to
testify in the retrial."
Those issues were before the Court of Appeal. The Court
not being a final Court was enjoined to consider and
resolve all the issues raised in the appeal. The issues above
are not trivial.
"The Appellant at the Court of Appeal on page 891 of
the records formulated six issues for determination as
follows:-
(1) The learned trial Judge erred in law when he
proceeded to give Judgment in favour of the
prosecution without properly and adequately
evaluating the evidence.
(2) The learned Trial Judge erred in law when he
convicted and sentenced the Appellant to death when
there was no proper arraignment.
(3) The learned trial Judge erred in law when he
proceeded to admit the Statement purportedly made
by one Sergeant Abiodon Ogundele Exhibit "P" for the
purpose of impeaching the credibility of Appellant
and relying on the same to convict Appellant and
sentencing him to death.
(4) The learned Trial Judge erred in law when in
admitting inadmissible evidence and relying on the
same to convict the Appellant and the
14
(201
7) LP
ELR-42
589(
SC)
same has occasioned miscarriage of justice.
(5) The learned Trial Judge was biased and displayed
unusual interest in ensuring the conviction of the
Appellant willy nilly.
(6) The Judgment of the Court is unreasonable,
unwarranted and against the weight of evidence."
"The Respondent formulated two issues thus:
(1) Whether having regard to the trial of the case, the
Appellant was not properly arraigned before the lower
Court.
(2) Haring regard to the facts and circumstances of
this case, whether the lower Court was not perfectly
right in holding that the Appellant is guilty of
murdering the late Ernest Ndudiri Onyekwere."
The Court of Appeal on page 892 of the records, after the
examination of the issues above, stated as follows:-
"I have carefully considered the issues formulated for
determination on behalf of Appellant and
Respondent. I am of the view having carefully perused
the Judgment of the lower Court and studied both the
Appellant and Respondent's Brief that the issues for
determination in this Appeal can be condensed into
one single issue:
Whether the lower Court conducted the Trial in strict
15
(201
7) LP
ELR-42
589(
SC)
compliance with the mandatory requirement relating
to the procedure in a Criminal trial which is a pre-
requisite of a valid trial, complying with the
provisions of Section 215 of the Criminal Procedure
Law and Section 36 (6)(a) of the 1999 Constitution."
"I shall determine this appeal on the lone issue as
formulated above".
ARRAIGNMENT
"The provision on valid arraignment contemplates
that an accused person must properly be arraigned in
Court at the Commencement of his trial. It also
contemplates that whenever there is any amendment
to an existing charge such amendment must first be
read and explained to the accused and the accused
must first plead thereto the same before trial on the
amended charge should commence. It does not
contemplate and or allow a situation, where, like in
the instant case, the charge and the amended charge
is read/explained to the accused and his plea taken
only after the trial has ended and in fact final
addresses of parties had been adopted and case
reserved for Judgment and addresses re-adopted and
case re-adjourned for Judgment which was never
delivered.
In this instant case, the arraignment and trial being
16
(201
7) LP
ELR-42
589(
SC)
null and void, the Judgment entered by the lower
Court on 6th December, 2007 by Hon. Justice D. O.
Oluwayemi is hereby set aside. The conviction and
sentence are accordingly quashed.
It is hereby Ordered that the case be remitted to the
Honourable Chief Judge of Lagos State for
reassignment to another Judge of that Court for a
fresh trial."
The Court of Appeal from above, abandoned all other issues
in the appeal, and considered only the issue No 2, on
Arraignment, under Section 215 of the Criminal Procedure
Law. Upon finding that Section 215 of the Criminal
Procedure Law was not complied with by the trial Court, it
quashed the trial, conviction and sentence and ordered
fresh trial.
The Court did not give consideration to the other issues in
the appeal. It was contended that the evidence on which
the Appellant was tried, was full of material contradictions.
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
17
(201
7) LP
ELR-42
589(
SC)
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.
Finally, therefore, the issue of Arraignment was not only
issue in the appeal before the lower Court. The other issues
in the appeal are left without
18
(201
7) LP
ELR-42
589(
SC)
consideration.
What is left for consideration in this case is that, the Court
of Appeal did not consider this case, the record of
proceeding as a whole to satisfy itself whether an order for
a retrial was appropriate in the circumstance of this case.
We had stated earlier on that, as a condition governing the
order of retrial, all the factors listed by this Court must co-
exist before a case may be sent back for retrial. The
Judgment of the lower Court has not shown all, or any, of
the factors exist to warrant the case of the Appellant to be
sent back for retrial. The Appellant has been in custody
since 2002. There is no justifiable reason therefore for the
order for fresh trial of the Appellant. I resolve the sole issue
in this appeal in favour of the Appellant. The appeal is
meritorious and therefore allowed. The conviction and
sentence of the Appellant by the trial Court for murder on
charge No.ID/38C/2003 are hereby set aside. The Order of
the Court of Appeal in Appeal No. CA/L/380/2009 remitting
the case back to the High Court of Lagos State for fresh
trial is hereby set aside. In its place an order discharging
and acquitting the
19
(201
7) LP
ELR-42
589(
SC)
Appellant on charge No. ID/38C/2003 is hereby entered in
favour of the Appellant, and it shall be order of the trial
Court and the Court of Appeal.
CLARA BATA OGUNBIYI, J.S.C.: The sole issue posed
for the determination of this appeal is:
Whether the order for retrial made by the Honourable
Court of Appeal without giving any reason, nor
considering the circumstances of the appellant's case
was proper.
The crux of the issue at hand is the propriety of the retrial
order made by the lower Court on the appellant. It is not in
controversy also that the entire proceeding of the trial
Court was void for non-compliance with the provision of
Section 215 of the Criminal Procedure Act (C.P.A.).
It goes without any argument that the entire trial was a
nullity as required by Section 215 C.P.A. and same was not
disputed to by any of the parties.
In other words, the absence of proper plea having been
taken from the appellant had vitiated the entire trial and
proceedings as was rightly stated by the lower Court,
which accordingly ordered for a fresh trial of the appellant.
It is pertinent to restate
(201
7) LP
ELR-42
589(
SC)
20
(201
7) LP
ELR-42
589(
SC)
emphatically that certain conditions are very mandatory
before an appellate Court can be in a position to make an
order for either a retrial or fresh trial. Whether or not the
conditions requisite are met in the case at hand, recourse
must be had to the judgment of the lower Court at pages
910 - 911 wherein the Court said:-
"The provision on valid arraignment contemplates that
an accused person must properly be arraigned in Court at
the commencement of his trial. It also contemplates that
whenever there is any amendment to an existing charge
such amendment must first be read and explained to the
accused and the accused must first plead thereto the same
before the trial on the amended charge should commence.
It does not contemplate and or allow a situation. where,
like in the instant case the charge and the amended charge
is read/explained to the accused and his plea taken only
after the trial has ended and in fact final addresses of
parties had been readopted and case reserved for judgment
and addresses re-adopted and case re adjourned for
Judgment which was never delivered. In this instant case,
the arraignment and trial being a null and void, the
21
(201
7) LP
ELR-42
589(
SC)
judgment entered by the lower Court on December, 2007
by Hon. Justice D. O. Oluwayemi is hereby set aside. The
conviction and sentence are accordingly quashed. It is
hereby ordered that the case be remitted to the Honourable
Chief Judge of Lagos State for reassignment to another
judge of the Court for a fresh trial."
The learned counsel for the appellant, I must say rightly in
my view, succinctly summarized the entire gamut of the
contents of the lower Court's judgment (supra) when he
said:-
"...the lower Court did not provide a basis for ordering a
retrial (fresh trial) and non can be deduced from its
Judgment. The evidence adduced at the trial and other
circumstances of the appellant'�s disposition and that of
prosecution witnesses, the contradictions, the roles played
by the trial judge and the prosecuting counsel which
highlighted were not considered before the order of retrial
(fresh trial) was made. It is settled principle of law that
before an order of retrial was made, it is necessary to
consider the proceedings of the trial Court and examine the
evidence led as well as the entire circumstances of the
22
(201
7) LP
ELR-42
589(
SC)
case."
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."
In the case under consideration, I will not hesitate to say
that
23
(201
7) LP
ELR-42
589(
SC)
having concluded that the appellant'�s arraignment was
faulty, the lower Court rightly set aside the judgment of the
trial Court and quashed the conviction and sentence of the
appellant thereof. However, the Court without any further
consideration proceeded and ordered for a fresh trial. 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.
From the judgment of the lower Court reproduced supra,
same did not state any reason indicating that there was
proper examination of the evidence and circumstances of
the case before the order for retrial was made.
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
24
(201
7) LP
ELR-42
589(
SC)
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.
From all indications and taking into consideration the
entire case as it is disclosed on the record of appeal, the
proceedings in this case is not clear cut and straight
forward to warrant the
25
(201
7) LP
ELR-42
589(
SC)
making of an order for fresh trial. This is especially when
regard is had to the identity of the victim as relating his
name, the person who identified the corpse to the doctor
for post mortem purpose especially in the absence of any
police office. Also in addition is the fact that the appellant
had been at his trial and appeal for a period of at least 11
years and having been in detention; there is also the
problem of availability of witnesses in the case for
subsequent trial. The record had also revealed that there
was an unauthorized removal and tampering with the
corpse of Ernest N. Onyekwere when same was removed
from the Ikeja General Hospital by the relations of the
deceased to the Lagos Hospital without the consent,
knowledge or approval of the police.
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
26
(201
7) LP
ELR-42
589(
SC)
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
27
(201
7) LP
ELR-42
589(
SC)
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.
In the appeal before us and having regard to the
extenuating circumstances of the appellant’s denial of the
commission of the offence coupled with the Police
Preliminary Investigation report which exonerated the
appellant from prosecution, as well as the contradictory
evidence of the Prosecution witnesses who testified before
the trial Court, the evidence against the appellant cannot
be said to be completely overwhelming.
With the few words of mine and especially relying on the
comprehensive reasoning and conclusion arrived at by my
learned brother Bage. JSC in his lead judgment which I
adopt
28
(201
7) LP
ELR-42
589(
SC)
as mine, I also make an order acquitting and discharging
the appellant. The order of a fresh trial made against the
appellant by the lower Court is hereby set aside by me.
The appellant is acquitted and discharged forthwith.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-
EKUN, J.S.C.: 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.
29
(201
7) LP
ELR-42
589(
SC)
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 that
"the new charge was not read to the accused person as
required by the Criminal Procedure Law." His plea was
taken on that day. 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
30
(201
7) LP
ELR-42
589(
SC)
sentenced to death by hanging.
On appeal to the Court of Appeal, Lagos Division (the lower
Court), 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
appellants 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.
The sole issue for determination in this appeal, as
formulated by learned counsel for the appellant is:
"Whether the order for retrial made by the Honourable
Court of Appeal without giving any reason nor considering
the circumstances of the appellant’s case was proper.”
There is no cross appeal against the finding of the lower
Court that the trial was a nullity for non-compliance with
Section 215 of the Criminal Procedure Law and Section
36(6)(a) of the 1999 Constitution Thus, the only
31
(201
7) LP
ELR-42
589(
SC)
consideration in this appeal is whether the order for retrial
was proper in the circumstances of this case.
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
32
(201
7) LP
ELR-42
589(
SC)
(1988) 1 NWLR (Pt. 73) 721 @ 741-742 G-C; Amos
Bode v. The State (2016) 12 NWLR (Pt. 1525) 154.
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.
It is pertinent to note and I agree with learned counsel for
the appellant that in making the decision to order a retrial
in this case, the lower Court did not give any consideration
whatsoever to the guiding factors enumerated above. The
Court seemed to be of the view that once the trial at the
trial Court was declared a nullity, the only option open to it
was to order a retrial. From the authorities earlier referred
to such a position with respect is erroneous.
Certain aspects of the evidence before the
33
(201
7) LP
ELR-42
589(
SC)
trial court are significant in determining whether the order
for a retrial was proper in this case:
- The fact that the appellant denied committing the offence
and was in fact initially exonerated of the crime in the
Police Preliminary Investigation report (Exhibit L) and a
recommendation made for the prosecution of the six police
officers in his team who were detailed by the appellant to
investigate the deceased and who eventually absconded.
- Undisputed evidence that the corpse of Ernest N.
Onyekwere was unilaterally removed from Ikeja General
Hospital to General Hospital, Lagos and tampered with by
relations of the deceased without the consent, knowledge
or approval of the Police.
- Inconsistency in the evidence of the prosecution witnesses
as to who identified the body of the deceased as that of
Ernest N. Onyekwere to the doctor who performed the
autopsy.
It was in evidence that Dr. Elesha, who testified as PW4
conducted the autopsy on the deceased as a representative
of the family of the deceased. While PW3 testified that it
was he who identified the body of the deceased to the
doctor because there was no policeman present, PW4
34
(201
7) LP
ELR-42
589(
SC)
stated in his evidence in chief that the body was identified
by the Police. Under cross-examination however, he stated
that there was no policeman present at the time the
autopsy was performed. Also that the Government
Pathologist was not present.
The inconsistency in the evidence of these witnesses is
material because the identity of the corpse is an important
factor in determining one of the ingredients of the offence
of murder i.e. that the deceased died. The appellant was
charged with killing one Ndudiri Onyekwere. He was
however convicted of killing one Earnest NDUBISI
ONYEKWERE (see p.634 of the record).
There was also an alternative version of what caused the
death of the deceased which was not discredited - that the
deceased was pushed out of a moving vehicle about a
month before his arrest and was receiving treatment for his
injuries at Onitsha when he was arrested.
PW1, a friend of the deceased testified that he met the
appellant at SARS Ikeja and that it was there that the
appellant and one Biodun (one of the police officers who
absconded) beat the deceased, tied him with rope, hung
him and hit him with the butt of a gun in
35
(201
7) LP
ELR-42
589(
SC)
order to make him confess to committing the offence for
which he was arrested. He stated that after some time he
could no longer hear the cries of the deceased. That it was
after this incident that they were transferred to Panti and
he later learnt that he had died. The evidence of the
appellant was that he never worked at Ikeja where the
offence allegedly took place but at C.I.D. Panti, Yaba. The
prosecution did not lead any evidence to tie the appellant
to SARS Ikeja at any point in time.
The effect of these observations is that it cannot be said
that the evidence, taken as a whole, disclosed a substantial
case against the appellant. Furthermore, the offence was
alleged to have been committed in 2002 and the appellant
has been in custody since then - a period of 15 years to
date. Given the inconsistencies in the evidence of the
prosecution and the length of time spent in custody by the
appellant, I am of the considered view that in the
circumstances of this case, it would be oppressive to put
the appellant on trial a second time.
As stated earlier, each case will be decided on its own
peculiar facts. If the prosecution had made out a
36
(201
7) LP
ELR-42
589(
SC)
substantial case against the appellant, having regard to the
gravity of the offence with which he was charged, a retrial
or fresh trial would have been proper notwithstanding the
length of time he has spent in custody. I am convinced that
in this case, the order of retrial did not meet the justice of
the case. See; Mohammed v. The State (2013) 5 NWLR
(Pt. 1347) 315 @ 328 B-F: Ogboh v. F.R.N. (2002) 10
NWLR (Pt. 774) 21; Amos Bode v. The State (supra).
It is for these reasons that I agree with my learned brother,
SIDI DAUDA BAGE, JSC that there is merit in this appeal. I
allow it.
The judgment of the Court of Appeal delivered on 1st
February, 2003 remitting the case to the Honourable Chief
Judge of Lagos State for retrial is hereby set aside. An
order of discharge and acquittal is hereby entered in favour
of the appellant in respect of Charge No. ID/38C/2003.
Appeal allowed.
EJEMBI EKO, J.S.C.: I read in draft the judgment just
delivered in this appeal by my learned brother, SIDI
DAUDA BAGE, JSC, I agree that the appeal be and is
hereby allowed for the reasons therein contained and
others
37
(201
7) LP
ELR-42
589(
SC)
herein below.
The appellant was at the trial Court accused of causing the
death of one NDUBIRU ONYEKWERE. It was a murder
charge, under Section 319(1) of the Criminal Code Law of
Lagos State. He was also charged for perverting the course
of justice contrary to Section 126(1) of the same Criminal
Code Law. The trial was at the Criminal Division of Lagos
State High Court of Justice.
The trial had commenced and the PW.1 had substantially
testified before it was realized that the plea of the accused
person had not been taken. The pleas were then taken by
the appellant, as the accused person, in respect of the two
charges. He pleaded not guilty to each charge. He was
represented by a counsel. The defence did not protest. They
seemed to have acquiesced.
Thereafter, after the evidence of four (4) out of the six (6)
witnesses listed by the prosecution to testify, the
prosecuting counsel withdrew the original charge sheet
contending that there were some inconsistencies and that
the charge was incompetent. He did not give particulars of
the alleged inconsistencies. The evidence of PW.3 and
PW.4, he thinks, must have tremendously jolted
38
(201
7) LP
ELR-42
589(
SC)
him.
On 21st February, 2006, the prosecutor filed the amended
charge. He made no effort to have the amended charge
read and explained to the accused person. No plea was
taken on the amended charge. The trial proceeded and two
more prosecution witnesses testified thereafter. The
prosecution closed their case on 12th September, 2006,
and the defence opened their case on 21st September,
2006 and closed the defence on 10th October, 2006.
The prosecution and defence filed and exchanged written
addresses. The written addresses were “finally” adopted on
12th December, 2006 after a couple of adjournments. The
case was then adjourned to 25th January, 2007 for
Judgment. Before then the prosecution brought an
application "to withdraw the Amended charge dated 21st
February, 2006". Mr. Sanni, the prosecutor, on 12th
February, 2007, informed the trial Court: "we shall be
relying on the initial charge filed on the 22nd of
September, 2003". I ask: which initial charge? It had since
been withdrawn!! Mr. Arthur Asha, who that day appeared
for the accused person did not oppose the application. The
prosecutor was clearly up to some games or
39
(201
7) LP
ELR-42
589(
SC)
tricks.
The only charge, as it is, the accused pleaded not guilty to
was the original charge read and explained to the accused
person after the evidence of the PW.1. And as I earlier
stated the accused who was throughout represented by
counsel had acquiesced in all these procedural mixed-ups.
It appears to me on authority ARIOR 1 v. ELEMO (1983)
1 SCNLR 1; (1983) 1 SC 13 that the accused could waive
this procedural right of fair hearing that enured to his
benefit. This is a procedural irregularity that can be waived
expressly or by conduct. In this case, the accused person
and his counsel appeared to have expressly waived the non-
compliance or strict compliance with the procedure of
taking plea to the charge he was defending.
Between 12th February, 2007 and 6th December, 2007
when the judgment of the trial Court was delivered, there
were not less than 5 adjournments which were largely
caused by the prosecution on 12th February, 2007, Mr.
Sanni, the learned Prosecutor, withdrew the Amended
Charge. As a result, the matter was "adjourned to 16th
February, 2007 for the adoption of Written Addresses by
Counsel". There is no minute of any proceedings
40
(201
7) LP
ELR-42
589(
SC)
on 16th February, 2007.
On 22nd February, 2007 "the Written Addresses of Counsel
to both the Prosecutor and the Accused Person (were)
adopted" and the case was adjourned to 19th April, 2007
for Judgment. It appears the trial Court did not sit on 19th
April, 2007. On 24th May, 2007, the minutes of the
proceeding show that both the prosecution and defence
Counsel re-adopted their respective written addresses, and
the matter was further adjourned to 1st June, 2007 for
judgment by the learned trial Judge. There is no record that
the Court sat on 1st June, 2007.
The trial Court sat on 22nd October, 2007, and from the
blues the trial Court observed at page 602 of the Record:
"From the record, the Court found out that the new charge
was not read to the Accused person as required by the
Criminal Procedure Law.
PLEA
Charge read and explained to the Accused person in
English Language to the satisfaction of the Court. Accused
person pleaded Not Guilty to the one count charge on
Information. Accused 1st Count. Not Guilty.
Case adjourned to 24/10/2007 for Adoption of Written
Addresses by Counsel to both the Prosecution and the
Accused
41
(201
7) LP
ELR-42
589(
SC)
person."
The Written Addresses were re-adopted on 24th October,
2007 and the "case adjourned to 3rd December, 2007 for
Judgment". The Judgment was not delivered on 3rd
December, 2007, but on 6th December, 2007.
Section 36(4) of the 1999 Constitution provides -
"(4) whenever any person is charged with a criminal
offence, he shall, unless the charge is withdrawn, be
entitled to a fair hearing in public within a reasonable time
by a Court or Tribunal."
Neither this provision nor the provision of Section 294(1) of
the same Constitution which enjoins the learned trial Judge
to deliver his Judgment within 90 days after the conclusion
of evidence and final addresses seemed to have any
meaning at the trial Court. For emphasis, I hereby
reproduce Section 294(1) of the Constitution.
That is -
"294(1) Every Court established under this Constitution
shall deliver its decision in writing not less than ninety
after the conclusion of evidence and final addresses and
furnish all parties to the cause or matter determined with
duly authenticated copies of the decision within seven days
of the delivery thereof."
It seems to me that
42
(201
7) LP
ELR-42
589(
SC)
the prosecutor was playing tricks on the Court with the
charge. At pages 21-22, 82-83, 334-335 and 478 of the
Record one can hardly find any difference between the old
and new charges, particularly as regards the allegation of
murder. At page 478, the charge of Murder, which is
identical with the charge at pages 21-22, reads:
"INSPECTOR JOHN ONWE (m) is charged with the
following offence:
STATEMENT OF OFFENCE - 1ST COUNT
Murder contrary to Section 319(1) of the Criminal Code
Law Cap 32, vol.2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Insp. John Onwe (m), with others now at large, on or about
the 18th June, 2002, in the Ikeja Judicial Division at State
Criminal Investigation Department Annex (Formerly
Special Anti Robbery) Squad) Ikeja murdered Ndudiri
Onyekwere."
The only differences between the charges at pages 21-22
and 478 are: (1), the other accused persons, 2nd-8th
accused persons were no longer on the charge sheet at
page 478, and (2) the 2nd charge of perverting the course
of justice at pages 21-22 had been dropped. It is no longer
on the charge at page 478. The 1st count, charging the
accused/appellant for the
43
(201
7) LP
ELR-42
589(
SC)
murder of one NDUDIRI ONYEKWERE remains extant.
On the merits, the defence vigorously contested the charge.
They submitted that the Police Preliminary Report, Exhibit
L, revealed the existence of the Autopsy Report signed by
one Dr. Animashaun who according to the PW3, Nnenna
Luke, never conducted the autopsy. The same PW.3
claimed to be at the autopsy and that he, it was who
identified the body of the deceased, Ndudiri Onyekwere to
the pathologist, Prof. Elesha, the PW.4. They further
submitted that Prof. Elesha, the PW.4 had been materially
contradicted in several respects, namely: when he testified
that a policeman identified the corpse of Ndubuisi
Onyekwere when the autopsy was conducted on the body of
Ndubuisi Onyekwere, and that the name of the policeman is
on his autopsy report. And that he, and not Dr.
Animashaun, conducted the autopsy. PW.4 admitted that he
was the pathologist hired by the family of the deceased.
That makes the inconsistency between PW.3 and PW.4 as to
whether or not policeman, including the accused were at
the autopsy material. The PW.3 was emphatic that
policemen were not at the autopsy. The PW.4 insists the
policemen were
44
(201
7) LP
ELR-42
589(
SC)
there and a policeman identified the corpse to him. PW.3
maintains that Dr. Animashaun was not present. The PW.4
posited that Dr. Animashaun, now deceased, signed the
autopsy report and he was present.
Notwithstanding these material contradictions the trial
Court convicted the accused person, the Appellant herein,
for the murder of EARNEST NDUBUISI ONYEKWERE on
18th June, 2002, and sentenced him to death. The charge,
and PW.1, PW.2 and PW.3 maintained that the person
allegedly murdered was NDUDIRI ONYEKWERE. The PW.4
posited that the body he conducted autopsy on was the
body of NDUBUISI ONYEKWERE identified to him by an
unnamed Policeman, against the evidence of PW.3 that he
was the person who identified the body of NDUDIRI
ONYEKWERE to the PW.4. The identity of the person
allegedly murdered by the Appellant had become an issue.
It was not resolved.
It was against this background that the accused/appellant
appealed against his conviction and sentence to the Court
of Appeal. The Brief of Argument settled by O. P. Ulegede,
Esq., of Counsel to the appellant at the Court of Appeal is
at pages 707-775 of the Record. The equally humongous
45
(201
7) LP
ELR-42
589(
SC)
Appellant's Reply Brief is at pages 855-880 of the Record.
Between the Appellant and the Respondent, the following
issues on the merits stood out. That is -
"i. the identity of the deceased – whether the Appellant
allegedly murdered NDUDIRI ONYEKWERE OR ERNEST
NDUBUISI ONYEKWERE.
ii. why the family of the deceased stealthily moved his
corpse from the General Hospital, Ikeja to General Hospital
Lagos for autopsy without the knowledge or approval of the
police investigating authorities.
iii. who between PW.3 and PW.4 identified the body to the
pathologist for the autopsy to be performed on the body.
iv. who between the PW.4 and Dr. Animashaun performed
the autopsy.
v. if it is true, as PW.4 Prof. Elesha claimed, that he did the
autopsy then it was suspect since he was hired by the
Onyekwere family to represent their interest.
vi. The material contradictions between the PW.3 and
PW.4: PW4 Prof. Elesha claimed on oath that a policeman
identified the corpse to him. The PW.3 on oath averred that
he, not the police, identified the body to PW.1, and it was
the body of NDUDIRI ONYEKWERE. The PW.4 insisted that
a policeman identified
46
(201
7) LP
ELR-42
589(
SC)
the body of NDUBUISI ONYEKWERE (not Ndudiri
Onyekwere) to him before he performed the autopsy.
vii. Contrary to the charges framed by the Prosecution that
the person murdered was NDUDIRI ONYEKWERE, the
learned trial Judge in his judgment found that the person
murdered was EARNEST NDUBUISI ONYEKWERE. Other
Prosecution witnesses identified the deceased as NDUDIRI
ONYEKWERE. Only the PW.4 and the trial Judge identified
the deceased variously as NDUBUISI ONYEKWERE or
ERNEST NDUBUISI ONYEKWERE."
The learned counsel raised a litany of other complaints
against the Judgment of the leaned trial Judge, the sum
total of which is that the conviction of the Appellant by him
was perverse. In the Judgment, at page 585 of the Record,
the learned trial Judge confirms an aspect of the PW.3's
evidence, that is: that no policeman was at the autopsy. He
held that policemen were "never supposed to be present, it
is only the relations that would identify the corpse and are
usually there". This holding unwittingly found the PW.4 to
be a liar.
In a seeming self contradiction, the learned trial Judge at
page 625 of the Record held that the PW.3 identified the
47
(201
7) LP
ELR-42
589(
SC)
corpse to the PW.4 (contrary to PW.4's categorical evidence
that a policeman did).
The Respondent's Counsel did not help the matter. In
Paragraph 5.6.5 of his Brief of Argument, at page 842 of
the Record, the learned counsel submits:
Furthermore, there is no evidence on record to show that
any Ndubisi Onyekwere existed let alone murdered. There
is no evidence on record that the police had another case of
murder involving any Ndubisi Onyekwere as to make this
Court believe that the Appellant was wrongly convicted."
The only reasonable deduction from this is that it was
perverse of the trial Court to convict Appellant for the
murder of NDUBISI ONYEKWERE.
He had at pages 840 of the Record, at Paragraph 5.6.2 of
his brief further submitted:
"It is very clear from the charge and the entire proceedings
of the [High] Court that the individual murdered is Ernest
Ndudiri Onyekwere. The testimonies of all the prosecution
witnesses and of the Defence is also clear as to the fact that
the name of the deceased is Ndudiri Onyekwere."
The Respondent’s counsel, an officer of the Court, is having
difficulties of intra-personal
48
(201
7) LP
ELR-42
589(
SC)
conflict. He is torn between telling the truth and telling
lies. He is clearly prevaricating. 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."
The prosecution charged the Appellant for the murder of
NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE,
NDUBISI ONYEKWERE, ERNEST NDUBISIS
ONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE.
If therefore they led evidence proving the death of
NDUBISI ONYEKWERE through PW.4, then another
version of the same murder has been introduced. 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
49
(201
7) LP
ELR-42
589(
SC)
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 mater ia l
contradictions, there can be no proof beyond doubt in a
criminal proceeding.
My Lords, the Court of Appeal per Akinbami J.C.A. whose
lead Judgment was concurred by Jauro and Pemu, JJCA, had
alluded to the following adverse facts against the
Respondent which the Court never bothered to consider.
That is at pages 900-902:-
"2.03. It is on record that the Appellant maintained
consistently and throughout that he worked at the materiel
time at State C.I.D. Panti Yaba. This is clearly borne out
from his statements to the police in evidence as Exhibits A-
A7 Exhibit L which is the Interim Investigations Reports by
the Police which exonerated the Appellant from the death
of the suspect collaborated (sic,) the position of the
appellant because therein, the report consistently posited
Appellant as an officer working at State C.I.D. Panti Yaba.
The Report Exhibit L was made by the high rank of the
police who are in position to
50
(201
7) LP
ELR-42
589(
SC)
know the actual location of the appellant at the time
material to the commission of this offence. PW2 whose
evidence the Respondent wants the Court to prefer to that
of the Appellant and Exhibit L and to rely on that of PW2
read the statement of the Appellant Exhibits A-A7 after the
appellant made them. PW2 never challenged the Appellant
and or contested the contents of the Exhibit A-A7. Exhibit
A-A7 is evidence produced by the same prosecution that
produced the evidence PW2 and Exhibits O and P before
the trial Court.
2.04. There is nowhere PW1 stated that his arrest at the
SARS Ikeja was carried out by the Appellant and or that the
Appellant was involved in the arrest in question. And even
if the Appellant was involved in the arrest in question. And
even if the appellant was involved in the arrest of PW1, not
concede, that per se is no reason why he should be
convicted for the death of the suspect.
2.05. It is submitted that the statements of the Appellant
Exhibit A-A7, the testimonies of PW1, PW2, PW4 and
Exhibits O and P all comes from the prosecution. And if
these pieces of the evidence contradicts one another, as
they have done here, then the
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contradictions under the versions of the Respondent on this
point untenable and in favour of the Appellant and
Honourable Court is urged to so hold.
2.06. It is not the law that once a person is connected by
evidence with the place where an offence took place, that
alone without more, makes such person culpable for the
commission of the offence and for which he must be
convicted which is the position the Respondent wants to
put across to this Honourable Court.
2.07. Therefore, the connection of the Appellant with SARS
Ikeja is no reason sufficient to hold that the appellant
committed the offence and for Appellant to be convicted for
the offence as did the trial Court.
2.08 It is equally submitted that an accused person was
found to have tell a lie (sic) on a particular point is a good
reason why the accused person should be held responsible
for the commission of a particular offence and in this
case, the death of the suspect and there sustain the wrong
conviction of the appellant by the trial court.
2.09. The Appellant is not the maker of Exhibits O and P.
Exhibits O and P were never shown to the Appellant and
Appellant adopted their
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7) LP
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contents before they were admitted in evidence. The
Exhibits O and P cannot therefore be used for the purpose
of contradicting the evidence of the Appellant and
impeaching the credibility of the Appellant as did the trial
Court and which the Respondent is urging this Honourable
Court to follow purported under Section 210(c) of the
Evidence Act and in paragraph 5.2.1 and 5.2.2 on page 27
of the Respondent's Brief of Argument. What happened
here and which the Respondent is still urging this
Honourable to do is contrary to Section 210(c) of the
Evidence Act and this should not be accepted by the
Honourable Court."
The foregoing issues of fact completely exonerate the
Appellant of the allegation that he murdered the deceased.
On these state of facts he was entitled to be discharged and
acquitted. 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.
The Court of Appeal, not being the final Court, was
enjoined to consider and resolve all issues raised in the
appeal. The
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issues are not trivial. If considered and resolved in his
favour, the Appellant was entitled to an order of discharge
and acquittal. Take for instance the submission "that the
Statements of the Appellant Exhibits A-A7, the testimonies
of PW.1, PW.2, PW.4 and Exhibit P all come from the
prosecution. And if these pieces of evidence contradict one
another, as they have done here, then the contradictions
(render) versions of the Respondent on this point untenable
and in favour of the Appellant", which raises the issue of
the prosecution's evidence incapable of proving the guilt of
the Appellant beyond reasonable doubt. 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.
As I shall show anon the Court of Appeal before
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7) LP
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SC)
ordering fresh trial ought to have considered whether the
evidence at the trial High Court justify the order for fresh
trial. It is apparent that the order for fresh trial of the
Appellant notwithstanding the bad state of the evidence at
his first trial was perfunctory. The Court of Appeal only, in
effect, considered whether the trial Court complied with
Section 215 of the Criminal Procedure Law. Upon finding
that Section 215 CPL was not complied with the Court of
Appeal quashed the trial, conviction and sentence, and
ordered fresh trial. It did not consider or resolve the first
issue in the appeal suggesting that the evidence on which
the Appellant was tried was full of material contradictions.
The Court of Appeal, no doubt was exercising its discretion
when it made the order for fresh trial. This is a discretion
that must be exercised judicially and judiciously, and not
whimsically or capriciously. In making this order of "fresh
trial", the Court of Appeal seemed to have thought that the
order for fresh trial was automatic once it held that the
trial did not comply with Section 215 of the CPL of Lagos
State.
In the recent case of GANIYU v. THE
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7) LP
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589(
SC)
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."
In the instant case, the Court of Appeal did not consider in
this case "the record of proceedings as a whole" and satisfy
itself if "the evidence disclosed a substantial case for
proper trial of the accused" person. I had earlier
reproduced portions of the proceedings. I should think the
order for flesh 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
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7) LP
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SC)
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
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7) LP
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SC)
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".
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
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7) LP
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589(
SC)
(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)
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7) LP
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SC)
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
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7) LP
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SC)
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).
In the DAMINA case (supra), like in the instant case, the
evidence on the identity of the corpse or body on which the
autopsy was carried out was an abysmal failure. The failure
to link the body on which the post mortem examination was
carried out to the person allegedly
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7) LP
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SC)
killed by the accused person was held to be a fatal
omission. In the instant case, the contradictions in the
evidence of PW.3 and PW.4 together with Exhibit L are very
material. The trial Court convicted the Appellant for the
murder of EARNEST (ERNEST) NDUBISI ONYEKWERE,
whereas the person killed was stated categorically on the
charge to be NDUBIRI ONYEKWERE. No evidence
explained these materially irreconcilable versions.
Moreover, the learned trial Judge, like the Judge in the
DAMINA case (supra) had stepped into the arena or
offered to provide, gratis, the missing evidence to fill the
lacuna. This Court in the DAMINA case, in the
circumstances set aside the order for fresh trial on grounds
of substantial miscarriage of justice to the appellant.
My Lords, in view of my foregoing analyses, the order of
fresh trial made by the Court of Appeal in this case
deserves to be, and it is hereby set aside. It is oppressive. It
shall occasion substantial miscarriage of justice. I had
alluded in this Judgment to the exonerative facts of this
case before the Court of Appeal, and reproduced in extenso
the portion of their judgment. These facts which the
Respondent,
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7) LP
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as adverse to the prosecution as they are, seemed to
acknowledge are the facts which again he has to re-
present. The witnesses who contradicted one another
cannot resile from their earlier testimonies on oath.
Accordingly, the order for fresh trial of the Appellant will
not serve the interest of justice. It will be oppressive to put
him on further trial on the same set of evidence.
Appeal allowed. The conviction and sentence of the
Appellant by the trial Court for murder on charge No.
ID/38c/2003 are hereby set aside. The Order of the Court
of Appeal in the Appeal No. CA/L/380/2009 remitting the
case back to the High Court of Lagos State for fresh trial is
hereby set aside. In its place, an order discharging and
acquitting the Appellant on Charge No. ID/38c/2003 is
hereby entered in favour of the Appellant, and it shall be
order of the trial Court and the Court of Appeal.
PAUL ADAMU GALINJE, J.S.C.: The Appellant herein was
arraigned before the High Court of Lagos State charged
with the murder of one Ndubuisi Onyekwere under
Section 319(1) of the Criminal Code Law of Lagos State. He
was also charged with preventing
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7) LP
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the course of justice contrary to Section 126{1) of the same
Criminal Code Law.
Trial commenced and PW1 had substantially testified
before the Court realized that the plea of the Appellant had
not been taken. The Court now ordered for the plea to be
taken and the Appellant pleaded not guilty to the two
counts charge.
The Appellant was represented by counsel who did not
protest against the conduct of the proceedings. During the
trial, the initial charge was withdrawn and replaced by a
fresh charge which was later withdrawn and replaced by
the initial charge. The new or amended charge was never
read and explained to the Appellant and his plea taken.
At the close of the prosecution's case and that of the
defence and after counsel's addresses, the learned trial
judge after several adjournments finally delivered his
judgment on the 6th December, 2007, wherein he found the
Appellant guilty and sentenced him to death, despite visible
contradictions in the evidence of the prosecution witnesses.
The contradictions were so apparent that no reasonable
Tribunal can rely on such evidence. For example, PW3
Nnenna Luke who said no autopsy was
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SC)
conducted, later contradicted herself when she claimed to
be present during the autopsy and that she identified the
body of the deceased, Ndubuisi Onyekwere to the
Pathologist, Prof. Elesha who testified as PW4. PW4 in his
evidence said that a policeman who he did not name
identified the corpse of Ndubuisi Onyekwere and it was he
who conducted the autopsy and not Dr. Animashaun, as
he was the pathologist hired by the family of the deceased.
Clearly there is a clear contradiction between the
testimonies of PW3 and PW4 as to whether or not a
policeman, including the Appellant were present during the
autopsy. PW3 maintains that Dr. Animashaun was not
present, while PW4 insisted that Dr. Animashaun, now
deceased, signed the autopsy report and he was present.
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
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SC)
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.
Where the prosecution's case is infested with
contradictions, clearly the prosecution has failed to prove
its case beyond reasonable doubt. The Appellant ought to
have been discharged and acquitted. This the trial Court
did not do. The lower Court, that is the Court of Appeal
dwelt only on the aspect of the arraignment of the
Appellant and did not consider the case as a whole when it
made an order of retrial. This I think is wrong.
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
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7) LP
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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.
For these few words and the elaborate reasoning in the
lead judgment of my learned brother, SIDI DAUDA BAGE,
JSC, this appeal shall be and it is hereby allowed. The
order of retrial by the lower Court is hereby set aside. In
the result, the appellant is hereby discharged and
acquitted.
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