Francis Omosaye Vs The State (2014) LLJR-SC

Francis Omosaye Vs The State (2014)

LAWGLOBAL HUB Lead Judgment Report


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.

  1. 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.

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It is further contended that the trial court is also in breach of Section 36 (6) (c) of the Constitution as well as Section 352 of the Criminal Procedure Act both of which make the provision of a Legal Practitioner to an accused who is not represented by one mandatory. The Lower Court is again right when it nullified the trial court’s decision that proceeded inspite of the fact that the appellant who, though being tried for a capital offence, was not represented by a Legal Practitioner.

Concluding, learned respondent’s counsel argues that the facts of the case at hand satisfy the requirements the Supreme Court held in Yesufu Abodundun & Ors v. The Queen (supra), Joseph Okosun v. The State (1979) 3-4 SC 36 and Abu Ankwa v. the State (1969) ALL NLR 129 at 133 must co-exist before a retrial is ordered in the event a trial is declared a nullity following a fundamental error in law or irregularity in procedure. Learned counsel further relies on Okafor v. The State (1976) 5 SC 13 Okegbu v. The State (1979) 11 SC 1 and Samaila Umaru v. The State (2009) 8 NWLR (Part 1142) 134 in urging that the unmeritorious appeal be dismissed.

The issue the appeal raises is unmistakably a very narrow one indeed. Both sides are rightly agreed that the entire proceedings leading to appellant’s conviction and sentence, given the fundamental procedural lapses therein, cannot endure. Certainly, the trial court’s failure to assign a legal practitioner to the appellant who was being tried for a capital offence constitutes a fundamental breach of the provisions of Section 36 (6) (c) of the 1999 Constitution as amended and Section 352 of the Criminal Procedure Act both of which require that the court provides a legal practitioner to defend the appellant where he could not afford one.

Secondly, both sides are correct in the postulation that the lower court is right to have held that the appellant could not, inspite of Section 218 of the Criminal Procedure Act, be convicted summarily for murder. Decisions of this Court on these appear legion. The authorities also justify the lower court’s nullification of the judgment of the trial court that has arisen inspite of these lapses. See Yesufu Abodundun & Ors v. The Queen (Supra); Okegbu v. The State (1979) 11 SC 1; Joseph Okosun v. The State (1979) 3-4 SC 36; Edet Asuquo Bassey v. The State (2012) 4-5 SC 119; Sabina Chikaodi Madu v. The State (2012) 6 SC (Part 1) 80 and Sumanya Issah Torri v. The National Park Service of Nigeria 6-7 SC (part 3) 171.

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The narrow issue to consider in the determination of the appeal, therefore, is whether the manner the lower court’s consequential order is couched, following the nullification of the entire proceedings of the trial court, should endure.

It has lavishly been contended by learned appellant’s counsel that the appellant cannot be “retried” since in the eyes of the law, with the lower court’s declaration that the trial court’s entire proceedings are null and void, is as if the trial of the appellant had never occurred in the first place. It is further contended that the appellant should not be “retried” because of the long period it would take to try him. These arguments are totally unacceptable as the law does not provide for the indulgence so canvassed on appellant’s behalf.

The lower court is a creature of statute. The court’s powers to make whatever order must necessarily draw from statute as well. Section 19 (2) of the Court of Appeal Act which establishes the court provides thus:-

“19. (2)

Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be retried by a court of competent jurisdiction.” (underlining supplied for emphasis).

In Kajubo v. State (1988) 1 NWLR (part 73) 721 this Court in dealing with strikingly similar facts to those in the instant case concluded at pages 733-734 of the law report per Wali, JSC thus:-

“However with the coming into operation of the 1979 Constitution, section 33 (9) of Chapter IV of that Constitution seems to have restored that power. Section 33 (9) reads:-

‘(9) 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 ingredients as that offence save upon the order of a superior court.’

It is common knowledge that this Court is a Superior Court of record, in fact the highest Superior Court. 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 gravity of the offence and the interest of justice into consideration is the one for a fresh trial of the appellant. By the power conferred on the Court by section 33(9) of the 1979 Constitution, it is hereby ordered that the case be remitted to the High Court of Lagos State for a fresh trial of the appellant by another Judge of that court….” (Underlining supplied for emphasis).

The lower court is a superior court of record as well and therefore draws from Section 36(9) of the 1999 Constitution as amended which is in pari materia to Section 33(9) of the 1979 Constitution. The Constitution remains our supreme law and by virtue of Section 36 (9) therein subsumes the powers which enure to the lower court under Section 19 (2) of the Court of Appeal Act. The judgment of the lower court which learned appellant counsel insists should have otherwise ordered the discharge and acquittal of the appellant, see pages 115-116 of the record, inter-alia reads:-

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“In the present case the irregularities highlighted in this judgment are of such a nature that render the trial a nullity. There is no unique circumstances/factor that would make it oppressive of the appellant to put him to a fresh trial. The appellant is charged with the offence of murder with a very serious consequence on conviction – death. More in justice will be done if the order for retrial is not granted having regard to the proof of evidence filed by the prosecution.”

The Lower Court’s order that the appellant be tried afresh given the clear and unambiguous words of the extant statutes is a valid exercise of the court’s statutory powers. Section 36(a) of the 1999 Constitution (as amended) empowers the Court below to order, notwithstanding that appellant’s trial had been declared a nullity, that the appellant “again be tried” for the very offence he was convicted in the aborted trial. From the words which make up the enabling statutes, there is hardly any difference in essence in the use of the word “trial”, “retrial” or “again be tried” by the lower court in its consequential order. The justice of the case does not permit any reasonable tribunal to discharge and acquit the appellant simply because the lower court has ordered, after nullifying the trial court’s proceedings, that the appellant be “retried.”

The concurring judgment of Oputa, JSC in Kajubu’s case (supra), the relevant portion of which I hereby adopt is hereinunder reproduced from pages 738-739 of the law report for its relevance:-

“Now, how can an appellant who in the contemplation of the law, had not even been tried, be on appeal acquitted and discharged from the serious charge against him involving a sentence of death…

It was further argued that the appellant had been in prison custody since his arrest in 1980 and his invalid arraignment on the 25th day of August, 1981. I am sorry for the length of time the appellant has been in prison custody. However, a court of law should not only temper justice with mercy but what is sometimes vitally important it should also temper mercy with justice. And this is a case calling for mercy to be tempered with justice. The natural leaning of our minds may be favour of and in sympathy with Appellant and we may in like manner be thus tempted to sympathise with any prisoner in the position of the present Appellant. But one has to sound a note of serious warning against giving away too easily to mere formal objections on behalf of accused persons. Such extreme facility may constitute a great blemish on the judicial process. Owing to which more offenders may escape than by the manifestation of their innocence. The danger here is that by such “leniency” we (the Courts) may imperceptibly loosen the bands of society, which is kept together by the hope of reward, and the fear of punishment.” (Underlining mine for emphasis).

The lower court’s judgment which abides the decision of this Court remains unassailable. In the result, the appeal which has failed is hereby dismissed and the lower court’s judgment accordingly affirmed.


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