Alfred Elijah & Anor V. The State (2002)
LawGlobal-Hub Lead Judgment Report
A. OLAGUNJU, J.C.A.
The 2 appellants were tried jointly with 8 others for the offence of armed robbery punishable under sub-section 1(2) (a) of the Robbery and Firearm (Special provisions) Act. Cap. 398 of the Laws of the Federation of Nigerian 1990, by the Robbery and Firearm Tribunal holden at Ikot Ekpene in Akwa Ibom State. The trial began following the plea of each accused person taken on 7/9/98, ran through to 27/5/99 when the learned counsel concluded their addresses and the case was adjourned to 3/6199 when judgment was delivered.
Each accused was convicted and sentenced to death.
In the meantime, on 28/5/99, Tribunal (Certain Consequential Amendments, etc.) Decree, No. 62 of 1999, to be contracted to ‘Decree 62 of 1999′ in subsequent references, was promulgated. It dissolved from that day certain Judicial Tribunals including Robbery and Firearm Tribunal which tried and convicted the appellants along with 8 others and vested the jurisdiction of that Tribunal in the Federal or State High Court of the particular area where the offence was committed. The Decree made some consequential provisions to validate and preserve what had been done by the Tribunals before their dissolution. In particular, sections 2 and 3 made special provisions for trials which had been concluded in the sense that judgment had been written but had not been delivered on the vesting date and for part heard cases that had not been concluded. In respect of trial that had been concluded subsection 2(6) empowers the High Court in which jurisdiction over the matters is thenceforward vested to deliver the judgments. As regards part heard criminal matters, sub-section 3(1) (b) expressly directs that such cases be tried de novo.
Against this background, dissatisfied with the decision of the Tribunal the two appellants filed 2 original and 2 additional grounds of appeal contesting evaluation of evidence and findings of fact by the Tribunal as well as validity of the trial but from only original ground 2 of which they formulated the lone issue challenging the validity of the trial. The issue reads:
“Whether having regard to the commencement date of the Tribunals (Certain Consequential Amendments, etc.) Decree 1999 there was a trial or whether the judgment was not a nullity; having been delivered after the Tribunal had been divested of its jurisdiction as per section 2 of the said Decree.”
I pause here to observe that the first original ground of appeal is an omnibus ground while additional ground 1 attacks evaluation of evidence by the Tribunal which was also taken to task on findings of fact in additional ground 2. Obviously, the lone issue reproduced above was not formulated from any of those grounds. Therefore, the three grounds of appeal from which no issue was formulated are, on principle, deemed to have been abandoned. See Obasi v. Onwuka, (1987) 3 NWLR (Part 61) 364, 369, and Ndiwe v. Okocha, (1992) 7 NWLR (Part 252) 129, 138-139. Accordingly, I strike out the 3 grounds.
In any case, the respondent also formulated one issue which because it moderates the issue formulated by the appellants by expanding it I reproduces as follows:
“In consideration of the Commencement Date of Decree No. 62 of 1999, whether or not the Tribunal’s judgment that was delivered on June 3, 1999 was valid and competent. And if the answer to this preceding Question is in the negative, can this Honourable Court in the circumstance order a retrial of the Appellants?”
The second limb of the issue formulated by the respondent as underlined in the preceding passage is far outside the issue formulated by the appellants as it anticipates the question of retrial of the appellants by which the issue formulated by the appellants falls short. There is obviously justification for the respondent’s approach, understandably because the order of retrial though not formulated as an issue was argued extensively as a vocal point that was given prominence in the Appellants’ Brief of Argument, presumably, as a corollary of the main focus of the appellants’ contention that the trial by the Tribunal is a nullity. Therefore, in order to meet justice of the case I will adopt without any further ado about the scope of the grounds of appeal the issue formulated by the respondent which encompassed both the merit of the appeal and the consequential order in terms of an order of retrial.
Against this background, as regards the validity of the trial, the sum total of the argument of learned counsel for the appellant is that at the time the trial of the appellants was concluded on 3/6/99 jurisdiction of the Tribunal over the offence for which the appellants were convicted had been ousted by Decree No. 62 of 1999 which dissolved the Robbery and Firearm Special Tribunal over which the learned trial judge presided that came into force on 28/5/99, five days before the Tribunal delivered its judgment. On those facts, the learned counsel submitted that the trial of the appellants which began on 7/9/98 and concluded with the judgment delivered on 3/6/99 was not a trial; it is incompetent because the Tribunal lacked jurisdiction to conclude the case.
He submitted that not only the judgment rendered after the Tribunal had been dissolved is a nullity but more fundamentally the entire proceedings of the Tribunal citing in support Timitimi v. Amabebe, (1953) 14 WACA 374, and the Supreme Court’s decision in Madukolu v. Nkemdilim, (1962) ANLR 581, 590; and Ifezue v. Mbadugha, (1984) 5 SC 79, 176. Underlining the autocratic nature of the law ousting the jurisdiction of the court the learned counsel submitted, ex cathedra, that ‘when a military regime by a Decree promulgated ousts the jurisdiction of courts or tribunals in any subject matter, the Decree must be strictly construed and followed’ founding for support on Attorney General of the Federation v. Sode, (1990) 2 NWLR (Part 128) 500. On the force of that submission he urged this court to hold that there was no trial of the appellant who are ipso facto, entitled to be acquitted of the offence for which they were convicted.
On the issue of retrial, the learned counsel agitated that in arriving at decision whether to make an order of retrial the court should be guided by the Supreme Court’s decision in Abodundu v. The Queen, (1959) 4 FSC 70, 73-74, in which the correct test is laid down recounting instances in which the test had been applied as including The Queen v. Edache, (1962) ANLR 22, 25; Adisa v. Attorney-General, Western Nigeria, (1966) NMLR 144; Eyorokoromo v. The State, (1979) 6-9 SC 3, 15; and Ewe v. The State, (1992) 6 NWLR (Part 246) 147. He reiterated the view of that court in its decision in Erekanure v. The State, (1993) 5 NWLR (Part 294) 385, where it was admonished, at page 394, that once a trial is a nullity, a retrial or trial de novo can no longer be automatic as ‘each case must be considered in the peculiar circumstances which form the background’. He gave the peculiar circumstances that can, in the present appeal, make an order for a retrial to be ineffectual as (a) the order for disposal of Exhibits made by the learned trial judge at the conclusion of the case and (b) the difficulty or impossibility of reassembling the witnesses who testified in the abortive trial. He urged this court to regard those factors as militating against an order of retrial which he urged this court to refuse.
Learned counsel for the respondent conceded that the judgment of the Tribunal which tried the appellant is a nullity consequent upon the explicit provisions of sub-sections 2(2) of Decree No. 62 of 1999 which dissolved Robbery and Firearm Tribunals and sub-section 2(1) thereof which vested the Federal and State High Courts with jurisdiction to try the offences created by Robbery and Firearm (Special Provisions) Decree, No. 5 of 1984. But he did not share the argument of learned counsel for the appellants that the entire exercise which started on 7/9/98 and terminated with the delivery of judgment on 3/6/99 was not a trial as it was done without jurisdiction. He contended that the argument of learned counsel for the appellants is contradicted by the express intendment of Decree 62 of 1999 which ‘was to preserve and create continuity in respect of on-going matters as at the commencement date of the Decree through transitory provisions’. Particularly noteworthy, he argued, are the provisions of sub-sections 2(3), 2(4), 2(5), 2(6) and 3(1) of the Decree which made diverse transitional provisions to bridge possible gaps between the proceedings conducted by the demised Tribunals and the take over of the proceedings by their successors so as to ensure that the dissolution of the Robbery and Firearm Tribunals was not misconceived as a blanket disavowal of everything that was done before they were dissolved. Quite the contrary, he agitated.
To buttress his argument he highlighted the provision of sub-section 2(6) of the Decree which allows the delivery by a judge of the Federal or State High Court of a judgment which had been written by a Tribunal but not delivered when the Decree came into force to show that contrary to the argument of learned counsel for the appellants it is not the object of Decree 62 of 1999 that every proceeding or step taken by the Robbery and Firearm Tribunals becomes void where a trial is concluded but the judgment had not been delivered when the Decree came into force. He contended that while the judgment delivered after the commencement of the Decree is a nullity the proceedings conducted before the Decree came into force are not rendered nugatory and are, indeed, factors that must be taken into consideration in a deliberation on whether in a situation such as this a retrial should be ordered of the appellants whose trial had been concluded before dissolutions of the Tribunal but the judgment was not delivered until the Tribunal no longer had jurisdiction. It will not be fair, he argued, that a retrial would be barred for reasons which run counter to the general intendment of the controlling legislation.
As regards the general principle governing ordering the retrial of an accused at the end of a successful appeal in a criminal trial, the learned counsel submitted that the decision in Abodundu v. The Queen, supra, is inapplicable. This is primarily because by stipulating under sub-section 3(1)(b) of Decree 62 of 1999 that a case which was part-heard when the Decree came into force must be tried de novo this court is left without any discretion in the matter, he contended, as the duty of the court is to give effect to statutory provisions, particularly where there are no ambiguities in the plain and ordinary reading of the words of the statute citing in support The State v. Jammal, (1996) 9 NWLR (Part 473) 384, 394; and Okwueze v. Ejiofor, (2000) 15 NWLR (Part 690) 389. He argued in the alternative that even if the entire proceedings of the Tribunal are held to be a nullity, a point which the learned counsel did not concede, acquittal and discharge of the appellants would not follow necessarily guided by clarification by the Supreme Court in its subsequent decision in Kojubo v. The State, (1988) 1 NWLR (Part 73) 721, which put a premium on the strength of the case against an accused person as a weighty factor that manifests the justice of any given case. In sum, the substance of the argument of the learned counsel is that even if we grant as a hypothesis that the earlier trial is a nullity that fact does not bar the appellants from being retried as the enjoinment by sub-section 3(1)(b) of Decree 62 of 1999 that any part-heard case pending at the time when the Tribunal was dissolved must be begun de novo does not leave this court with any discretion for a recourse to the test in Abodundu v. The Queen, supra. He buttressed his argument with the decision in Kojubo v. The State, supra, which he submitted reinforces the view that overwhelming evidence before the Tribunal that led to the appellants’ conviction at the end of the abortive trial cannot be brushed aside without doing an incalculable harm to the truth, substance and justice of the case.
On the argument about the non-availability of the witnesses who testified at the earlier trial and the disposal on court’s order of certain Exhibits used at the trial as factors militating against an order for a retrial the learned counsel dismissed as speculative making the two factors as the pivot for ordering a retrial. He contended that there being no evidence about the current disposition of the witnesses who testified at the earlier trial or about execution of the order made for the disposal of the Exhibits tendered at the earlier trial any argument about the militating effect of those two factors on an order of retrial is a mere surmise and a barren attempt to cross the bridge before getting there. He regarded as particularly apposite the Supreme Court’s decision in Erekanure v. The State, (1993) 5 NWLR (Part 294) 385, at page 398, where similar fears were rejected as inadequate to refuse an order of retrial. For the reasons canvassed variously by learned counsel for the respondent he urged this court to allow the appeal and to order a retrial of the appellants.
It is common ground that on the facts of this case in which the judgment of the Tribunal was delivered some five days after the Tribunal was dissolved that judgment was rendered without jurisdiction and is, ipso jure, null and void, a proposition to which support is by common consent lent by the locus classicus decision of the Supreme Court in Madukolu v. Nkemdilim, supra. But whether as contended by learned counsel for the appellants the entire proceedings of the Tribunal are a nullity because what took place before the Tribunal did not amount to a trial or as rejoined by learned counsel for the respondent only the judgment delivered after the Tribunal had been dissolved is a nullity which does not affect the proceedings of the Tribunal before its dissolution calls for examination. Also calling for scrutiny is the direct but central question on which this appeal revolves, namely, whether in the peculiar circumstances of this case an order of retrial of the appellants is appropriate. I will examine the two points seriatim.
To begin with, the argument of learned counsel for the appellants that the entire proceedings of the Tribunal are a nullity because its jurisdiction had been ousted by the time it delivered its judgment is cast in a general proposition of the law that leaves indistinct the various ways which loss of jurisdiction by a court may be occasioned thereby misplacing the sequence of the argument. Strangely, this has led, imperceptibly, to lumping together inelegantly as both the cause and consequences three types of situation in which lack of jurisdiction may occur, namely, where, on the one hand, a court assumes jurisdiction over a matter when none was conferred on it or where there is a breach of essential pre-condition requisite to a trial before or after assuming jurisdiction, e.g. failure to put the accused or defendant on notice, etc., and where, on the other hand, the jurisdiction vested in a court at the beginning of a trial is ousted before the conclusion of the trial.
On the facts of this case, the error by which the trial by the Tribunal is infested is of the third type. The first and second types of error render the entire proceedings to be a nullity ab initio and the legal consequences of such trial conform to the principles of law exposed by the learned counsel. But the extent, of the invalidity of the trial occasioned by the third type of vitiating errors turns largely upon the provisions of Decree 62 of 1999 that ousted the jurisdiction already possessed by the Tribunal when it began the trial of the case. Hence the second error by learned counsel for the appellants is failure to examine critically the provisions of the Decree, especially sub-sections 2(3), 2(4) & 3(1) which read as follows:
“(3) A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the Schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State, as the case may be and such charge, claim and court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this sub-section without further assurance than this Decree.
(4) Any order, remand, decision or judgment made by a Tribunal before the commencement of this Decree is hereby preserved.”
“3(1) Where any part-heard matter is pending before any Tribunal on the date of making of this Decree the judge –
(a) may, if the parties to the proceedings agree in a civil cause, adopt the proceedings of the Tribunal concerned;
(b) shall, in a criminal case, try the matter de novo pursuant to this Decree.”
The general tenor of the above provisions whereby the charge, claim or court process filed before any of the dissolved Tribunals is saved and deemed as having been duly filed or served before the courts to which the jurisdiction of the Tribunals is transferred and whereby any order, remand or decision which includes ruling on any point of law is preserved cannot by any stretch of the imagination be regarded as an invalidity or nothingness which is the essence of a nullity. Coupled with this is the fact that in civil matters the proceedings under the aborted trial by the Tribunal may be adopted in the new trial by the High Court. These negate the conception that the proceedings conducted before the dissolution of the Tribunals are worthless and, ipso facto, a nullity. In both its civil and criminal aspects the general intendment of Decree 62 of 1999 does not support such a sweeping proposition of the law.
It is significant to observe as a preliminary point that contradiction of the argument advanced on behalf of the appellants by learned counsel for the respondent who examined the material provisions of Decree 62 of 1999 was left unanswered by learned counsel for the appellants who filed no Reply Brief when the circumstances called for him to do so. As it will become obvious from the discussion that follows the point is unanswerable even though going by the conclusion predicated by the analysis of the law on the matter the point stands resolved in the affirmative in support of the respondent’s contention.
In any case, central to the debate on whether the appellants should be retried for the same offence following the invalidity of their earlier trial which was marred by the judgment being delivered after the tribunal which tried them had been dissolved are the principles formulated in Abodundu v. The Queen, supra, on which the appellants relied in contrast with the respondent who relied on the provisions of sub-section 3(1)(b) of Decree 62 of 1999 to debunk the argument of the appellants. On the one hand, the contention of learned counsel for the appellants that an order for retrial cannot be made against the appellants is predicated, primarily, on the fact that the trial is a nullity which, within the principles in Abodundu v. The Queen, supra, operates as a bar to any further trial of the appellants coupled with the difficulty posed by reassembling the witnesses who testified during the aborted trial and of retrieving the evidence tendered at the trial part of which had been ordered by the Tribunal to be disposed of which the learned counsel urged as special circumstances militating against making an order of retrial. On the other hand, learned counsel for the respondent replied that the provision of Decree 62 of 1999 which expressly enjoined that any part-heard criminal matter pending before the Tribunal when the Decree came into force must be tried de novo prevails over the rule in Abodundu v. The Queen, supra, which is thereby rendered inapplicable.
Since the principles in Abodundu v. The Queen, supra, are the fulcrum of the argument of learned counsel for the appellants about whether a retrial of the appellants should be ordered I must correct the wrong presentation of argument by the learned counsel of the principles evolved by that decision and reset in proper focus the current trend of those principles on both of which the learned counsel is in a serious misapprehension on some material points. I will examine the two points in turn.
Firstly, on the applicability of the principles in Abodundu v. The Queen, supra, I do not consider to be informed argument by learned counsel for the appellants who simply reproduced the five points on which the test formulated by that decision is based without relating the points to the facts of this particular appeal. Thus the very element of the doctrine of stare decisis which enunciates that the facts of two cases must be identical or similar before the earlier case can be proffered as a binding authority for the later case is disregarded. An exposition of the doctrine of stare decisis is given by the Supreme Court in Clement v. Iwuanyanwu, (1989) 20 NSCC (Part 2) 234, where the court, per Oputa, JSC, at pages 240-241, explained the rudiments of the doctrine, inter alia, as follows:
“… it will be dangerous to consider any pronouncement of any court even the Supreme Court, in vacuo and without reference to the peculiar facts of the cases in which those pronouncements were made as those facts framed the issues that were decided…”
As principles are distilled from the facts of the case in which they were promulgated; as principles draw their inspiration and strength from the very facts which framed issues for decision; it follows that when the facts are not similar, the principles need not apply or be applied to the new case.
Principles therefore do not provide any patterns for definite situation. They (as their name implies principium means the point of beginning) merely constitute the starting point of legal reasoning. The ratio decidendi of a case which creates the precedent establishes a principle which does not foreclose further inquiry especially when the facts are different.”
For a further elucidation of the point, see Adesokan v. Adetunji, (1994) 5 NWLR (Part 346) 540, 561-562 & 577-578; and for an incisive examination of the application of the principles in Abodundu V. The Queen, supra, which mirrors by comparison the slipshod presentation by learned counsel for the appellants, see Akinfe v. The State, (1988) 19 NSCC (Part 2) 313, 324-327.
On matching the principles under review with the facts of both cases with a view to testing the application of the ratio of the earlier case to the case on appeal I cannot find any identity or similarity between the facts of the present case and the facts of Abodundu’s case. In the present case, the only error which led to the trial by the court below being rendered invalid is the promulgation of a Decree that dissolved the Tribunal trying the appellants midstream while the trial was winding to conclusion without any error or fault on the part of the Tribunal as far as the lone issue in this appeal discloses. In contrast, Abodundu’s case, supra, was marred by fundamental procedural irregularity about inspection of locus in quo when the learned trial judge made the notes he wrote at the locus (on which the witnesses who demonstrated at the locus were not examined when the court reconvened about what they demonstrated at the locus) an important item of evidence to shore up the testimonies of the two eye-witnessee of the offence of murder.
Thus without demonstrating in what way was the trial by the Tribunal adversely affects the appellants and in what way is an order of retrial likely to affect them within the framework of the five points enumerated as guidelines in Abodundu v. The Queen, supra, the learned counsel proffered, perfunctorily, that decision as an absolute authority without any further ado that an order of retrial is barred because the former trial is a nullity.
But in practice before an order of retrial can be granted or refused within the test formulated in Abodundu v. The Queen, supra, this court must be addressed on whether there has been a miscarriage of justice by any irregularity in the proceedings of the Tribunal; whether the evidence at the trial disclosed a substantial case against the appellants; whether there are special circumstance that would render the retrial of the appellants oppressive; whether the offences of which the appellants were convicted are grave or trivial and whether refusal of an order for retrial would occasion a greater miscarriage of justice than to grant it. The facts of this case having been shown to be dissimilar from the facts of Abodundu’s case and learned counsel for the appellants having failed to address the material factors controlling the exercise of the court’s discretion one way or the other the appellants’ case is not brought within the scope of the principles in Abodundu v. The Queen, supra, by mare citation of the case and reproduction of the five-point test.
That brings me to the second point, the resetting of the current trend of the principles in Abodundu v. The Queen, supra. The contention by learned counsel for the appellants that once a trial is found on appeal to be a nullity it bars the appellant from being retried for the same offence is, with respect, erroneous as betraying a smattering of understanding of the trend of legal development in this particular area of the law. True enough, interpreting the principles in Abodundu v. The Queen, supra, the Supreme Court held in Okafor v. The State, (1976) 10 NSCC 259, 262, that a ‘retrial implies that there was a former trial, and so this court will not grant a new trial (or retrial) upon a trial which was null and void’ citing in support of that declaration Okoro v. The Police. (1953) 14 WACA 370. Yet in Okegbu v. The State, (1979) 12 NSCC 151, 157, the court shifted ground and held that the fact that a trial is a nullity does not preclude the appellate court from ordering a retrial if the facts and circumstances of the case dictate that course as the only way of doing a substantial justice in the matter. Thus the court after declaring null and void the trial which was riddled with defects, nonetheless, ordered that the appellant be retried for the same offence. It is significant that in that case the court did not consider its earlier decision in Okafor v. The State, supra, which by implication must be regarded as a decision that turned on its own peculiar facts.
However, in Kajubo v. The State, (1988) 19 NSCC (Part I) 475, the court turned full circle by impliedly overruling its decision in Okafor v. The State, supra. In coming to a decision the court reviewed the powers of the Supreme Court vis-Ã -vis its predecessor, the West African Court of Appeal, in making an order of retrial following the finding that the trial by the court below it is a nullity. The court, at page 480, identified the vacuum in the Supreme Court Act of 1960 that failed to provide expressly for the power to order a retrial comparable to the power of the West African Court of Appeal in sub-section 12(5) of the West African Court of Appeal Ordinance. The upshot of the hiatus was the test in Abodundu v. The Queen, supra, but the lacuna, according to the Supreme Court, has been filled by sub-section 33(9) of the Constitution of the Federal Republic of Nigeria, 1979, that exempts from further prosecution for criminal offence one who has been tried by a court of competent jurisdiction and who was either convicted or acquitted. The court, per Wali, JSC, at page 481, concluded that:
“Since the whole trial has been declared a nullity, which in short means that the appellant has never been tried, the relevant and appropriate order to make in the circumstance, taking the evidence, the gravity of the offence and the interest of justice into consideration, is one for a fresh trial of the appellant.”
That is the very antithesis of the pronouncement in Okafor v. The State, supra, that makes an invalid trial which amounts to no trial a barrier to a further trial for the same offence. With the constitutional backing the decision in Kajubo v. The State, supra, is not only iron-clad but also more in consonance with logic and equity. The provision of subsection 33(9) of the 1979 Constitution was re-enacted, ipsissima verba, as sub-section 36(9) of the 1999 Constitution and it reads:
“No person who shows that he has been tried by any court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredient as that offence save upon the order of a superior court.” [Underlining mine]
With the provisions of the two Constitutions on the point at issue being in pari materia the decision in Kajubo v. The State, supra, covers the provision of sub-section 36(9) of the 1999 Constitution as well. Therefore, contrary to the argument of learned counsel for the appellants the principle on whether a retrial would be ordered in any given case does not allow being dogmatic that where a trial is found on appeal to be a nullity a verdict of acquittal without an order of retrial must follow as an inflexible rule. The principles of law which are distillable from the foregoing analysis negate such a sweeping proposition of the law. In my view, the correct position which is supported by a consensus of authorities on the point is that as a general principle the fact that a criminal trial by a court of first instance is a nullity does not prevent an appellate court from making an order of retrial the abiding consideration being the interest of justice as dictated by the special circum stances of a particular case.
The conclusion reached on the absence of constraint in making by an appellate court of an order of retrial where the trial is found to be a nullity leads to an examination of the rival argument by learned counsel for the respondent that whether there ought to be an order of retrial should be regulated by the provisions of section 3 of Decree 62 of 1999. The Decree which dissolved among others Robbery and Firearm Tribunal made consequential provisions for the cases pending before the Tribunal when the Decree came into force. Sub-section 3(1) (b) of the Decree says, unequivocally, and I repeat for the avoidance of doubt that:
“Where any part, heard matter is pending before any Tribunal on the date of making of this Decree the judge –
(b) shall, in a criminal case, try the matter de novo pursuant to this Decree.”
The only quibble opens on the application of that provision is whether it is consistent with the provision of sub-section 36(9) of the Constitution which as has been shown in Kajubo v. The State, supra, is authoritative on when a retrial may be ordered. The appellants having raised no objection to the applicability of sub-section 3(1) (b) of the Decree which, prima facie, is not shown to be inconsistent with the provision of sub-section 36(9) of the Constitution but, on the contrary, both sections having palpably shown to be mutually complementary I find to be persuasive the forceful argument of learned counsel for the respondent that the provision of sub-section 3(1) (b) of the Decree governs this case.
It is beyond doubt that as a precondition for trial de novo the proceedings on appeal were part-heard pending before the Tribunal on 28/5/99 when the Decree came into force the plea of the accused persons including the appellants having been taken which is the threshold of a criminal trial that was followed by the conclusion of hearing and addresses by counsel leaving only judgment to conclude the trial.
On the general considerations governing an order for a retrial three points call for clarification from the submissions of the learned counsel. First is the submission by learned counsel for the respondent that the stipulation by the Decree that in all part-heard criminal cases pending before the Tribunal on the vesting date the accused must be tried de novo has ousted the discretion of the appellate court thus rendering otiose the principles in Abodundu v. The Queen, supra. At the first blush, that proposition seems to be supported by the view of the Supreme Court in that self-same decision where on page 73 of the Report of the case it expounded the scope of the principles therein enunciated as follows:
“In formulating these principles we do not regard ourselves as deciding any question of law, or as doing more than to lay down the lines on which we propose to exercise a discretionary power.”
It is tempting to conclude that the principles formulated by that decision about when an appellate court will order a retrial being guidelines about exercise of discretion they must give way to the express statutory provision on the matter, in this regard, to sub-section 3(1)(b) of Decree 62 of 1999. But in practice, as shown by Kajubo V. The State, supra, on the interpretation of sub-section 33(9) of 1979 Constitution – the parallel of sub-section 36(9) of 1999 Constitution – evidence, gravity of the offence and the interest of justice are factors that must sway a decision whether to order a retrial. The fact that what is in the interest of justice must be considered along with the two other factors as special circumstances renders the test in Abodundu v. The Queen, supra, to be still relevant as an index of what may be considered reasonable and equitable in any particular situation. Besides, the phrase ‘save upon the order of a superior court’ at the end of each of sub-sections 33(9) & 36(9) of the 1979 & 1999 Constitutions strongly suggests that the statutory command on the bar over the order of retrial does not oust the discretion of the superior court and leaves the test in Abodundu v. The Queen, supra, intact. Therefore, sub-section 3(1)(b) of Decree 62 of 1999 which by classification of the hierachy of legislations is an Act of Parliament cannot derogate from the provision of sub-section 36(9) of 1999 Constitution. In sum, the provision of sub-section 3(1)(b) of Decree 62 of 1999 about starting a part-heard criminal case de novo though couched in absolute terms is not intended as law of the Medes and Persians totally unrelated to parallel constitutional provisions.
Secondly, as regards the argument of learned counsel for the appellants on want of assurance about reassembling of witnesses who testified before the Tribunal and the Exhibits tendered at that trial part of which has been disposed of by the order of the Tribunal, that anxiety has been settled by the decision in Erekanure v. The State, supra, that in considering whether to order a retrial it is gratuitous and unnecessary to worry over a matter which is the preserve of the Prosecution when the decision to embark upon a retrial is to be taken.
Thirdly, one important factor raised by the respondent about the merit of making an order of retrial is the strength of the case against the appellants which underscores the justice of making such an order that goes beyond the statutory stipulation for doing so. That factor is manifested by the evidence before the Tribunal on which the conviction of the appellants in the aborted trial was based and it calls for a resume of the facts proved before the Tribunal to highlight the gravity of the criminal escapade of the group jointly tried and convicted with the appellants.
The facts run as hereunder.
The appellants with 9 others accused of armed robbery were members of the Nigerian Army serving in the 82 Division of the Nigerian Army based in Enugu. On 30/8/87 the 11 accused persons including the 2 appellants dressed in army uniform were travelling in a Mitsubushi bus along Calabar Ikot Ekpene Road heading for Aba. At about 1 kilometer to Ibiakpan Junction they drove into the premises of a house where one Effiong Edet Sampson was waiting for the driver of the car which he chartered to convey him from Calabar to Aba while the driver entered into a nearby bush to ease himself. Sampson was approached by the soldiers who acting in concert punctured the tyres of the vehicle in which he was travelling with a bayonet with which they later threatened him; attacked him physically; snatched from him the bag he was carrying containing the sum of N54, 000.00 and he was forced to board the bus in which the soldiers were travelling. During the journey on Uyo Road at a lonely spot in Utu Ikpe Village the vehicle stopped and Sampson was kicked out of the vehicle by one of the soldiers whom he identified as the 8th accused.
Some distance from that spot he saw some Policemen on duty to which he reported his encounter with the soldiers. The Policemen pursued the soldiers through Ikot Ekpene and with the aid of the information gathered along about the movements of the bus carrying some soldiers the bus was intercepted at Brass Junction and taken to Eziama Police Station where the soldiers were arrested and the victim’s bog containing N53, 200.00 was recovered in the bus.
It was part of the Prosecution’s case that the Mitsubushi bus in which the soldiers were travelling at the time the victim, i.e. Sampson, was robbed was commandeered that morning by the soldiers at Opobo Junction in Aba on the pre that the soldiers were going on an urgent assignment and ordered the bus driver to drive them to Ikot Ekpene. It was also the Prosecution’s case that en route to Ikot Ekpene from Aba the soldiers committed various acts of robbery establishing, in particular, that prior to the attack on Sampson and robbing him of his money the soldiers had stopped a vehicle carrying passengers, beat up the passengers and forced one of the passengers carrying a travelling bag to join the bus in which the soldiers were travelling. It was on those facts which depict a predatory expedition of loathsome odium that the appellants and 8 other soldiers were convicted and sentenced to death the 11th soldier having died before the trial of the ten others began.
Independently of the provision of sub-section 3(1) (b) of Decree 62 of 1999 which stipulated that a part-heard criminal trial pending before Robbery and Firearm Tribunal when the Decree came into force be tried de novo it will be a disservice to our system of judicial administration if conviction for a serious crime can be upset by the lapse of the law and the convicted persons set free on a technical ground without qualms. That will run counter to the strident philosophy of this clime that justice is not one way traffic as exemplified by the Supreme Court in The State v. Aibamgbee, (1988) 2 NWLR (Part 84) 548, that unmerited acquittal is an antithesis of justice.
In the final analysis, the appeal succeeds and it is allowed. I set aside the conviction and sentence of each appellant delivered on 3/6/99 by Robbery and Firearm Tribunal sitting at Ikot Ekpene. In its place, it is hereby ordered that in accordance with sub-section 3(1)(b) of Tribunal (Certain Consequential Amendments, etc.) Decree. No. 62 of 1999, the two appellants shall be tried de novo by the High Court of Akwa Ibom State. To this end, the State Attorney-General is hereby ordered acting by virtue of his powers under section 211 of the Constitution of the Federal Republic of Nigeria, 1999, to set in motion the appropriate measure to give effect to this order.
Appeal succeeds and it is allowed. Conviction and sentence of each appellant are set abide. But the two appellants are to be retried for the offence of armed robbery punishable under sub-section 1(2) (a) of the Robbery and Firearm (Special Provisions) Act. Cap. 398 of the Laws of Federation of Nigeria, 1999.
Other Citations: (2002)LCN/1299(CA)