Francis Omosaye Vs The State (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

In its judgment delivered on 8th day of March, 2012 allowing appeal No.CA/B/220C/2006 against the decision of the Ondo State High Court, hereinafter referred to as the trial court, the Court of Appeal sitting at Akure, hereinafter referred to as the court below, nullified the entire proceedings of the trial court and set aside appellant’s conviction for murder contrary to Section 316 (6) and the sentence of death under Section 319 (1) of the Criminal Code Cap 30 Vol. II Laws of Ondo State. The court further ordered the “retrial of the appellant by a judge of the High Court of Ondo State other than Odunwo J.”

Dissatisfied with the judgment, the appellant has appealed against same to this Court on a notice dated 8th but filed on the 14th day of May, 2012. The undisputed facts of the case that brought about the appeal are as briefly stated below.

The appellant and three others were charged before the Ondo State High Court for the offence of murder. On arraignment, the appellant pleaded guilty to the charge and was, after the prosecution had addressed the court, summarily convicted and sentenced to death by the trial court.

At the court below, the appellant contended that his trial, conviction and sentence by the trial court are a nullity. He urged the court to set aside the entire proceedings. In upholding the appeal before it, the lower court ordered appellant’s retrial for the same offence by a judge of the trial court other than the judge whose decision was set-aside. This appeal is against that decision of the court below.

At the hearing of the appeal on 31st October, 2013, parties adopted their respective briefs of argument which had earlier been filed and exchanged by and between them. They relied on the arguments canvassed in the briefs for and against the appeal.

The two issues the appellant asserts in his brief as calling for determination of the appeal read:-

“1. Whether an order of retrial can be made when there was no trial abinitio.

2. Whether the lower court ought to have made order of discharge of the appellant rather than retrial.”

The lone issue distilled in the respondent’s brief for the determination of the appeal reads:-

“Whether in the circumstances of this case the lower appellate court was right to set aside the judgment of the trial court and order a retrial of the appellant by a judge of the High Court of Ondo State other than

Odunwo J.

On issue one, learned appellant’s counsel, Chinonye Obiagwu, submits that an order for retrial presupposes that there was an initial trial. Where there was no trial at all in the eyes of the law, learned counsel contends, there cannot be an order for a retrial. In the case at hand, because of the defect intrinsic to the summary trial adopted by the trial court, it is argued, the trial of the appellant is bedeviled by a fundamental flaw which the lower court correctly held had affected the entire trial. Appellant’s trial in the eyes of the law, learned counsel submits, did not occur at all given the error manifest in the trial court’s proceedings. The appellant for that reason, submits learned counsel, should have been discharged and acquitted by the court below which, instead, wrongly ordered appellant’s retrial. The respondent, learned appellant’s counsel however concedes is at liberty to commence appellant’s trial by taking the necessary step.

Relying on the decision of this Court in Yesufu Abodundun v. The Queen (1959) SC NLR 162 at 166 in further argument, learned appellant’s counsel submits that the factors which this Court stressed must co-exist before an appellate court orders a retrial remain unavailing to the respondent. Again, seventeen years after the alleged offence had occurred and seven years after the purported conviction by the trial court, it is virtually impossible to successfully try and secure appellant’s conviction. The appropriate order to make, learned counsel insists, is for the discharge and acquittal of appellant. Learned counsel further cites the decisions in Umaru v. State (2009) 8 NWLR (Part 1142) 134 at 145 and Adeoye v. State (1999) 6 NWLR (part 605) 174 at 191 and urges that the appeal be allowed.

Responding, learned counsel to the respondent submits that the lower court’s decision setting aside the trial court’s judgment and ordering appellant’s retrial cannot be faulted. The trial court’s failure to enter a plea of “not guilty” for the appellant who had pleaded guilty, contends learned counsel, is, beyond being an irregularity, a fundamental breach that rendered the entire trial of the appellant a nullity. The judgment of the lower court particularly at page 109 of the record, it is submitted, appreciates this much. The lower court, submits learned respondent’s counsel, rightly applied the principle which this Court held in Yesufu Abodundun & Ors v. the Queen (supra) should determine appellant’s fate.