Ismaila Lasisi V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.

This is an appeal against the judgment of the Court of Appeal Ibadan Division.

The appellants were arraigned on a two count charge of conspiracy to commit murder and murder contrary to sections 324 and 316 (3) punishable under section 319 (1) of the Criminal Code Law Cap 29 laws of Ogun State of Nigeria, 1978.

The prosecution, in order to prove its case called two (2) witnesses and tendered five (5) exhibits’ At the close of the prosecution case, Appellants gave evidence in their defence. Thereafter, both the prosecution and the defence counsel addressed the court.

In a considered judgment delivered by the trial Judge, appellants were found guilty and convicted as charged on the counts and were sentenced to death by hanging.

Hon. Justice Onafowokan, Judge of the trial court holden at Ilaro delivered its judgment on 6/5/09. Dissatisfied, the appellant appealed to the court of Appeal. The Court of Appeal, now lower court held that the entire proceeding leading to the conviction of the Appellants as well as other accused persons was a nullity.

The Judgment of the trial court was then set aside on the grounds that same is a nullity and an order of retrial was entered. See page 203 of the record of appeal. The lower court says:-

“I therefore resolve issue one in favour of the Appellants that the whole proceeding is a nullity.

Since the whole proceeding is a nullity, considering issue two will be an exercise in futility or mere academic exercise. ‘This court will not order the acquittal of the Appellants but instead order a retrial of the Appellants before another Judge. The Case is hereby sent back to the Hon. Chief Judge of Ogun State to assign to another Judge for the trial of the appellants to begin de novo”

Aggrieved by the above decision of the lower court as a result the appellant lodged an appeal against that decision before us and filed a Notice of appeal containing seven (7) grounds of appeal. I reproduce them here without their particulars.

1. The learned Justices of the court of Appeal erred in law when their Lordships ordered a retrial of the Appellant by another High court of Ogun state having found that failure to take the plea of the Accused person has vitiated the trial.
2. The Learned Justices of the court of Appeal erred in law when they held that:

“(1) That leaving the error or irregularity in the proceeding, the evidence taken as a whole discloses a substantial

(2) There are no such special circumstance as would render it oppressive to put the Appellants on trial second time” when in fact the entire preceding have been declared a nullity.

3. The Learned Justices of the court of Appeal erred in Law in ordering the retrial of the Appellant considering the surrounding circumstance of this case.
4. The Learned Justices of the court of Appeal erred in law in ordering the retrial of the Appellant by another judge of the High court of Ogun State having found that the Appellant was denied right to fair hearing.
5. The Learned Justices of the court of Appeal erred in law when they held that prima facie case has been made against all the Appellants.
6. The Learned Justices of the court of Appeal Erred in law when they held that:

“The fact that the Appellants have been in custody since the Date of arrest till now cannot amount to sufficient punishment for the offences to render a retrial oppressive” without considering the surrounding circumstance of the case.

7. The Learned Justices erred in law when they held that:

“the Appellants rights to freedom has to be weighed against the security of the general Public who are entitled to be protected from murderers” when there were no admissible evidence to support conviction of the Appellants.