Michael Udo Udo V. The State (1988) LLJR-SC

Michael Udo Udo V. The State (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is an appeal by Michael Udo Udo against the confirmation by the Court of Appeal, Enugu Division of his conviction for murder and a sentence of death by hanging passed on him by an Oron High Court presided over by Esin, J., on the 13th of September, 1982.

Before the court of trial, he was charged that on the 3rd of June, 1979, at Adiata Fishing Port, Oron, he murdered Owong Bassey Ekpenyong. It is enough to state that at the conclusion of the trial, he was convicted and sentenced to death according to law. On appeal the Court of Appeal, Maidama, J.C.A., Olatawura and Ajose-Adeogun JJ.C.A. concurring, resolved all the three issues that arose for determination against the appellant and dismissed the appeal.

The appellant has appealed further to this Court. Although he had filed seven grounds of appeal with his notice of appeal, the appeal was argued on the appellant’s brief which was based on the additional grounds of appeal which learned counsel had the leave of this Court to argue. Those grounds and the appellant’s brief based on them set out the following issues for determination, namely:

“2.1 Whether the appellant had a fair trial for failure of the Court to assign to him the Counsel who was defending him when the Counsel said he could no longer do so because he was not sure who would pay him, considering the provision of S.352 of the Criminal Procedure Act and the decision of the Supreme Court in the case of Saka v. The State (1981) 11-12 S.C. 65.

2.2 Where a financially handicapped accused person who is facing a capital punishment is being defended by a Counsel of his choice who in the middle of the case says he will no longer defend the accused because he is not sure who will pay his fees whether it is not mandatory under S.352 of the Criminal Procedure Act for the trial Judge to assign the Counselor any other Counsel to him for purposes of a fair trial.

2.3 Whether it was not the duty of the trial Judge to identify the material contradictions in the evidence of the prosecution witnesses and resolve them and in this case whether the Court of Appeal was justified to hold that the trial Judge had performed his duty in this respect.

2.4 Whether the inconsistencies in the evidence of the P. W.3 and P.W.4 were de minimis or they were material contradictions and whether it was insufficient for the trial Judge to simply comment and observe generally without identifying the areas of contradictions before the comment and observation.

2.5 Whether it was not necessary for the trial court to consider the defence of the appellant that he was struggling over Exhibit 1 with the deceased when it accidentally hit the deceased and he died, no matter how stupid the defence might appear to be and whether the Court of Appeal was not in error by not adverting its mind to this.

2.6 Whether it was proper for the trial Judge not to warn himself before believing the evidence of P.W.3 a full blooded brother of the deceased and convicting the appellant on his evidence.

I shall take the issue of fair trial first. It is enough to state that it was part of the contention of the learned counsel for the appellant that the only eye witness to the murder was P. W.3. The prosecution, however, contends that both P.W.3 and P.W.4 were eye witnesses to the murder. For reasons which will become obvious later, I need not resolve the conflict in this appeal. I only wish to state that the main plank in the appellant’s complaint of unfair trial was that the P.W.3, the only eye witness according to the defence, gave his evidence in the absence of the learned counsel for the defence in the court of trial.

It was the contention of the appellant that the trial Judge could have avoided the situation by granting the application of defence counsel for an adjournment on the ground that he was appearing in a murder case in another court. Also, he had adjourned the matter several times at the instance of the prosecution and should hold the balance between the prosecution and the defence, but did not, he argued.

The appellant also contends that the learned Judge was in error to have refused the application of the defence counsel to withdraw from further appearance for the defence because by foisting the case on him, he was compelled to render some half-hearted services for the defence when he was present at all. Even in the address, he pointed out, counsel merely left the matter to the court and said nothing to assist the defence. Counsel was not even present on the date judgment was delivered and capital punishment inflicted. Finally on the point, he submitted that the Court of Appeal was wrong when it held that in so far as the appellant had a counsel of his choice, even though he was absent at part of the trial, the provision of section 352 of the Criminal Procedure Law had been satisfied.

He submitted that right to counsel entails not only the person accused of a capital offence retaining a counsel of his choice but also the counsel conducting the case for such a person. He cited in support section 33(6)(c) of the Constitution of 1979; Saka v. The State (1981) 11-12 S.C. 80; Josiah v. The State (1985) 1 NWLR, 125 at p. 140. He submitted that the refusal of the trial court to grant the application of defence counsel for an adjournment was a wrongful exercise of his judicial discretion, and that the Court of Appeal was wrong to have acquiesced to that. In support he cited: University of Lagos v. Agoro (1985) 1 N.W.L.R. 143, p. 153, Saffiaddine v. C.O.P. (1965) 1 All N.L.R. 54, p. 56; Solanke v. Ajibola (1968) 1 All N.L.R. 46. p.52; Mobil Oil (Nig.) Ltd. v. Fed. Board of Inland Rev. (1977) 3 S.C. 97., p. 141. Demuren v. Asuni (1967) 1 All N.L.R. 94 p. 101; and Enekebe v. Enekebe (1964) 1 All N.L.R. 102, p.106.

In her reply the learned D.P.P. for Akwa Ibom State submitted that there was nothing on record to show a breach of the right to fair trial. She conceded it that the 3 P.W. testified in the absence of counsel for the appellant; but pointed out that the appellant himself never by himself requested the court to put off the cross-examination of 3 P.W. until such a time as his counsel would be present. Rather he exercised his right to defend by himself under section 33(6)( c) and (d) of the Constitution of 1979.When appellant’s counsel turned up, he never applied that P.W.3 be recalled for cross-examination by counsel.

It was necessary that trial should continue on the day in question, as the prosecution had considerable difficulty in assembling the witnesses for which the case had to be adjourned several times, she pointed out. The court had accommodated both sides, in their applications for adjournment, she submitted. Furthermore, she submitted that fair trial connotes the manner in which a Judge conducts a case, and not the prowess of a defence counsel. The trial Judge was ever conscious that a brief in a murder case “just not be devilled; Queen v. John Uzorukwu (1958) 3 F.S.C. 14.

Hence he refused the defence counsel’s application to withdraw from the case as soon as a counsel was assigned or employed to defend the appellant, the requirement of the law was satisfied, no matter the standard of performance of the counsel. Finally she submitted that section 352 of the Criminal Procedure Law was not breached. Saka’s case and Josiah’s case are not in point.

For a proper appreciation of the submissions on these cognate issues, it is necessary to recount the relevant facts. The appellant was on 13/8/50 arraigned on an information for murder. He pleaded not guilty and the matter was adjourned. After two further adjournments one Mr. Bassey, on 10/11/80 announced appearance for the appellant.

One Mr. Okon, Senior State Counsel, for the State stated that he had no witnesses in court and that matter was adjourned to 16/12/80 for hearing. On 16/12/80, 3/2/81, 16/2/81, 9/3/81 and 13/4/81, the appellant and his counsel were in court; but the matter had to be adjourned because the prosecutor was absent; without any recorded excuse. On 7/5/81 when both counsel were in court the case could not proceed because the appellant/accused was not reproduced in court. On 22/7/81 both appellant and counsel on both sides were in court; but the case could not proceed because the witnesses were not in court. On 7/9/81 the appellant and his counsel were again in court; but the prosecuting State Counsel was again absent, without any known reason. The case was adjourned and bench warrant issued for the arrest of the witnesses for the prosecution.

On 28/9/81 the witnesses for the prosecution were not available and so the case was further adjourned, after a bench warrant was issue for the arrest of the village head. It was only on 29/9/81 that appellant and counsel on both sides were present and hearing opened. P.W.1 and P.W.2 testified and were cross-examined.

On 26/10/81, the next adjourned date, Mr. Bassey for the appellant was absent. But he had written to the court to ask to be excused because he was appearing before another Judge in another murder case at Uyo High Court for an address. Without showing that he had given the application any serious thought, the Judge got the 3 P.W. Bassey Asuquo Effiong to testify in the absence of the defence counsel. The witness was, however, cross-examination by the appellant himself.

I must pause here to make some observations on the above facts. From the above synopsis, it appears clear to me that whereas the prosecution had readily got adjournments on twelve previous occasions, the learned Judge could not grant the first adjournment which the defence had good reasons to apply for.

This cannot be said to be good evidence of the fact that he was holding the balance between the prosecution and the defence. In my judgment, on the authority of decided cases, if the learned trial Judge had a discretion in the matter, a fact I very much doubt, he should have taken the learned defence counsel’s application for an adjournment, particularly for the reason given, into more serious account. If he granted or refused it, he should have said so clearly and given reasons for his decision. It should have been obvious from the record that he gave it a deliberate, careful, different and definite consideration and granted or refused it. But it does not appear to be so. For, being a judicial discretion it was not like an arbitrary one: it ought to have been seen that he exercised it judicially and judiciously on the material, to wit: the letter of application placed before him: see on this Saffiedine v. C.O.P. (1965) 1 All N.L.R. 54, 56; Ugbonna v. Olize (1971) 1 All N.L.R. 8, at p. 11, University of Lagos & Anor v. Aigoro (1985) 1 N.W.L.R. (pt. 1) 143 at p. 148. Chief James Ntukidem & Ors v. Chief Asuquo Oko & Ors. (1986) 5 N.W.L.R. (Part 45) 909.

From the facts relevant to fair hearing disclosed so far, it appears to me that whereas the prosecution, and sometimes the trial court suo motu, got adjournments of the case on twelve occasions, the only occasion when the defence was obliged to apply for an adjournment, the learned trial Judge did not even accord it the dignity of a deliberate consideration. I would recall the dicta of Elias, C.J.N. (as he then was) in a situation not quite dissimilar in Anisiuba v. Emodi (1975) 2 S.C.9, at pages 13 – 14;

“It would seem that the learned trial Judge was more angered by the dereliction of duty on the part of counsel than by anything for which the Plaintiff could be blamed; indeed his ruling showed no default on the part of the Plaintiff/Appellant.”

The appellant’s case here is stronger. In Emodi’s case, the plaintiff ran the risk of loosing her land: in the instant case, the appellant ran the risk of loosing his life. There was proven default on the part of counsel in Emodi’s case (supra). In the instant case the learned trial Judge was too impatient to go into it at all – to ascertain whether the fixture of two murder cases in which the same counsel represented the accused persons on the same day was the fault of counselor as a result of a superior order by the courts; whether it all arose from a negligent fixture of cases by the appellant’s counselor arose from superior orders from courts far beyond the span of his control, leaving him only, as it were, between the devil and the deep blue sea. But the two cases are similar in one respect in that, like in Emodi’s case, no default or fault was placed by the learned trial Judge at the door of the appellant. It appears to me to have been clearly established by the facts so far that the learned trial Judge failed to hold the balance between the prosecution and the appellant on the question of adjournment. This was one of the complaints of Senator Anah for the appellant.

But does the Judge have a discretion to refuse or grant an application for an adjournment in a murder charge once the defence counsel is absent at the hearing I do not think he has any. As counsel whether briefed or assigned, must be present and defend such an accused person, it is the accused’s right to get an adjournment once a counsel briefed by, or assigned to, him is absent. Therefore the joint effect of section 352 of the Criminal Procedure Law of Eastern Nigeria (Cap. 31 of 1963), and section 33 (6) (c) of the Constitution of the Federal Republic of Nigeria 1979 is to give a right to the services of a counsel to a person charged with murder, particularly where the offence is being prosecuted by a State Counsel; so, in order to make that right a reality, when, in such a case, the counsel briefed or assigned to such an accused is absent, the court of hearing has no alternative but to grant an adjournment to the accused to enable the counsel attend or for the accused to brief or be assigned another counsel who must have sufficient time to prepare for the defence of the accused. See Galas Hired v. The King (1944) A.C. 149; Dixon Gokpa v. I.G. of Police (1961) All N.L.R. 423, rev. Mbanefo, C.J., at p. 426 -7. R v. Mary Kingston 32 Cr. App R. 183. But I must quickly add that a counsel briefed or assigned for such a case must give utmost priority to the case against all other commitments. He is not entitled to hold the court to ransom by his absence or irregular attendance. The law does not give any special privileges to such a counsel: the right is that of the accused.

The next but perhaps more crucial stage was reached when, without considering the defence counsel’s letter of application for an adjournment, P.W.3, Bassey Asuquo Effiong, was sworn and he proceeded to give evidence, inspite of the fact that the appellant’s counsel was not in court. Senator Anah contends that this was in breach of the right of the appellant guaranteed by section 33 (6)(c) of the Constitution of 1979 and section 352 of the Criminal Procedure Law (Cap, 31 Laws of Eastern Nigeria (1963). Learned counsel for the appellant submitted that in view of the above provisions, the court of trial should have assigned a legal practitioner to the appellant rather than exposing him to a situation in which he had to conduct his own defence in a murder charge. The learned D.P.P., on the other hand contended that the requirement of section 33 (6) (c) and (d) of the Constitution were satisfied when the Court allowed the appellant to conduct his defence. The gravemen of the provisions, she contended, is that the accused person should, depending on which he elects to do, conduct his own defence by himself or brief a legal practitioner to do so for him.

I do not have to decide this interpretation of the provision of section 33(6)(c) and (d) by the learned D.P.P. which was accepted by the Court of Appeal in this appeal. This is because in point of fact, even if that election was intended by the law, which I doubt, the appellant had elected to be assisted for the defence of his life by a legal practitioner and he had in fact procured or been assigned the services of once. The relevant question therefore becomes: could the court rightly by any act of its own in this case by refusing an application for an adjournment – deprive him of the assistance of the legal practitioner during the proceedings in the murder case

In support of his argument the learned counsel for the appellant cited two cases, namely: Lateef Saka v. The State (1981) 11) 12 S.C. 65 and Godwin Josiah v. The State (1985) 1 N.W.L.R. (Pt.1) 125. I should point out that in both cases the breach of Section 287 (1) of the Criminal Procedure Act was also very much in issue. Also in both cases what fell to be construed in addition to the constitutional provision was Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975, and not section 352 0f the Criminal Procedure Act. That rule provides as follows:

“Rule 5 – Where an accused charged with an offence punishable with death is not defended by a legal practitioner the Tribunal shall assign a legal practitioner for his defence.”

Admittedly this rule, intended for Robbery & Firearms Tribunals, is differently worded from section 352 of the Criminal Procedure Law Cap – 31 Laws of Eastern Nigeria, 1963, applicable in Akwa Ibom State. That section provides as follows:

“352; Where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer, State Counsel or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence.

It is true that the obligation to assign a legal practitioner for such a person’s defence is expressed to be “if practicable”. Yet I believe that “shall” in the con means “must”. both because “shall” in a statute is ordinarily manifest of a mandatory intention and because, reading the section as a whole, its intendment is to create a situation of fairness and equal treatment as between the prosecution and the defence; as, in this case, the prosecution was represented by a legal practitioner, it was imperative that the defence should also be so represented.

There is no need in this case to consider the implications of “if practicable” in the section or in what situations those words will be relevant, and I do not decide it in this case. It is, in my view, implicit in the concept of fair hearing as an aspect of natural justice in the broad sense that the court should give equal opportunities to both sides to the conflict. A murder trial cannot be said to be fair when an accused, standing trial for his life, has to conduct the case himself as against a legal practitioner, for the prosecution. I am therefore of the clear view that, on the facts of this case at least, the difference in wording between section 352 of the Criminal Procedure Law and Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975, is, as learned counsel for the appellant has pointed out, a distinction without a difference. It follows that the same principles will apply in this case in this regard as those invoked by this Court in the cases of Saka v The State (supra) and Josiah v The State (supra). It is from this con that I must also construe the application of section 33 (6) (c) and (d) of the Constitution of the Federal Republic of Nigeria, 1979, which provides:

(6) Every person who is charged with a criminal offence shall be entitled-

x x x x x x x x x x x x x x x x x x x x x x x x x x x

(c) to defend himself in person or by legal practitioners of his own choice;

(d) to examine in person or by his legal practitioners the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution;”

Nothing can be clearer than the provision of equal opportunities for both the prosecution and the defence underscored by sub-section 6(d). For this reason, and for what I have stated before, I must reject the submission of the learned D. P. P. for Akwa Ibom State that the above provisions imply that what is required is for the accused person to defend himself either in person or by a legal practitioner of his choice. The alternative of defence of such a person by himself cannot meet the ends of justice and is contrary to the spirit and letters of both section 352 of the Criminal Procedure Law and section 33 (6) (c) and (d) of the Constitution of 1979 if he, not being a legally qualified person, is made to slug out his defence in a charge of a capital offence against legal practitioner. I must also reject the other submission of the learned D.P.P. that once he retained the services of a legal practitioner or had one assigned to him the requirements of the provisions have been satisfied. In my view, those provisions can only be satisfied when the legal practitioner is present and renders all necessary professional services to him all through the trial. In the case of The State (Hearly) v. Donoghue (1976) 1.R. 325 the Irish Supreme Court held that young prisoners charged with serious crimes were entitled not merely to legal representation but also, in order to make the right a reality, to legal aid and to be informed of their rights. I believe that the same principle applies here. It appears clear to me, therefore, that the purport and intendment of section 352 of the Criminal Procedure Law and section 33 (6) (c) (d) of the Constitution of the Federal Republic, 1979, is to introduce or perpetuate what Lord Denning described as “the fundamental principles of a fair trial” (see Tameshwar v. The Queen (1957) A.C. 476, at p. 486) into our administration of criminal justice. It was breached in this case when the learned trial Judge failed or neglected to consider the learned defence counsel’s application for an adjournment under rather compelling circumstances.

It was trampled upon with impunity when he proceeded to take the evidence of P.W.3, Bassey Asuquo Effiong, a most important witness for the prosecution in the absence of the legal practitioner for the accused person who was standing trial for his life. It was also not adverted to when P.W.5, Dr. John Akpan Inieke, gave his evidence in Chief in the absence of the learned Counsel for the appellant. I shall not visit the sins, if any, of the defence counsel on the court, as the learned counsel for the appellant appears to urge. I shall consider the role of counsel for the appellant separately.

Suffice it to say that, in the trial of the appellant, from what I have said so far, there have been breaches of serious principles of fair trial as well as the above statutory and constitutional provisions designed for the protection of the appellant. The essence and rationale of fair hearing given by the Constitution and laws of this country to a person standing trial for a capital offence are that, in view of the seriousness of the charge in such a case, the trial should not be weighted against an accused person who, not being a legal practitioner does not understand or appreciate the language, procedure, and technicalities of the court and is therefore in a definite disadvantage if he is made or allowed to conduct his case against a legally qualified person. Anything which detracts from his right to full access to a counsel at any stage of the trial amounts to unfair hearing. The appeal must therefore succeed on this. Because of the order I intend to make, I should not consider the other grounds.

Before I consider what proper order to make, I feel bound to say something about the attitude and role of the learned counsel, Mr. Bassey, for the appellant. For, from the record, it does not appear that he fully appreciated his position as a counsel for the defence in a murder trial. It is not quite clear how he came to appear for the appellant in the first instance. He however appeared for him for the first time on 9/3/81. After two further appearances, he was absent from court on 22/7/81 and 7/9/81 and from the record, did not even have the courtesy of writing a letter of excuse to the court. Again on the 26th of October, 1981, he wrote a “roughly written application” for an adjournment, even though according to the learned trial Judge, that date of hearing had been suggested by him. His absence on that day will be one of the main reasons that will lead to the retrial of this case. Yet again on the 9th of November, 1981, he appeared in court to apply for leave to withdraw from further appearance. His reason was that he was not sure who would pay his fees, whether the State or Legal Aid. The learned trial Judge, however refused to allow him to withdraw. Again on the 23rd of March, 1982, he arrived in court after P.W.5, Dr. John Akpan Inieke, the medical doctor who performed the autopsy had completed his evidence in chief. Going by the record, his defence of the appellant was nothing to write home about. He just got the appellant to make a half-hearted denial of even what he had said in his statement, which statements he had admitted. One has the impression that learned counsel did not interview his client at all. The result was that when in his defence the accused person came under the fire of cross-examination, he was compelled to admit:

“I told the police all this on 6/6/79 at the Police Station, Oron I did not tell my lawyer this story because I have not treated him well.”

This gives a clear impression that the appellant had been made to understand it clearly that he must suffer the penalty of poor defence by his counsel, because he had not paid his fees and he (counsel) was not sure whether the State or Legal Aid would pay him. To complete the whole ugly scenario, when the time came for counsel’s address the record simply reads:

“Address

Mr. Bassey. I leave the matter to the Court.” He was again absent on the day of judgment in the case.

The above facts prima facie, tell a story, a very ugly story at that. But I appreciate that it will be wrong to condemn him, no matter how clearly wrong his conduct may appear, without giving him a hearing. So many rules and practices of professional conduct, no doubt, appear to be involved that we considered most seriously whether it was not necessary and proper to send Mr. Bassey to the Legal Practitioner Disciplinary Tribunal for a proper investigation of his conduct in the case and, if found wanting, for necessary disciplinary action. In this respect, there has been only one saving grace, that is, that on the day that P.W.3 had to testify in the absence of counsel for the accused/appellant, Mr. Bassey had applied for an adjournment on the ground that he was addressing the court in another murder case in another High Court. I should therefore give him the benefit of doubt and treat his case with leniency and be content to make a few statements of guiding principles:

1. Legal representation in capital cases is guaranteed by both the Constitution and the Criminal Procedure Act and Laws of this country. For this reason a counsel who has been briefed or assigned either by the Court or Legal Aid to represent a person standing trial on a capital charge shall be present in court throughout the hearing and conduct the case from the beginning to the end with all the seriousness and professional skill at his disposal.
2. “No more important professional duty falls to members of the Nigerian Bar than that of representing persons charged with murder (and other capital offences) and once counsel accepts instructions in such a case he is expected to give it priority to all other engagements, however important or lucrative they may be. (See: Queen v. Uzorukwu 3 F.S.C. 14)
3. “Only in the most exceptional cases should a brief for the defence of a person charged with a capital offence be returned when once accepted and then only if sufficient time remains for another counsel to master the case. In no circumstances should a brief for the defence in murder (and other capital) cases be ‘devilled’. “(See: The Queen v. Uzorukwu 3 F.S.C. 14).
4. I may refer to Practice Note reported in (1964) 2 All E.R. 400 which reads “Counsel who has accepted dock brief and finds that he has conflicting commitments, still incurs the obligation to represent the accused unless, on his application to the court, the court relieves him of this obligation. In such circumstances he may expect the court to be helpful. This statement does not detract from the right of counsel to demur to being selected for a dock brief, if he is of opinion that an existing commitment prevents him from undertaking the brief.”
5. I should recommend it to the General Council of the Bar that they take time to draw up some more guiding rules on this most important matter for the legal profession so as to lay down definite rules to guide counsel as to when they can reject a brief in a capital charge, what is required of counsel who accepts such a brief, what course a counsel who finds on his hands two such cases fixed on the same day take, and so on.

I should leave this aspect of the matter here, meantime. I would commend this for application to counsel briefed or assigned to defend persons charged with capital offences, mutatis mutandis.

Finally I shall consider what order to make, having allowed the appeal. In Lateef Saka v The State (supra), the appellant was discharged and acquitted. But in Josiah v The State (supra) a retrial was ordered. There has been some trial, but it is a mistrial. In such a case, I should consider the matter on the basis of the principles adumbrated by the Federal Supreme Court in the case of R. v. Abodundu & Ors. (1959) 4 F.S.C. 70, at pp. 73) 74. I may summarize them as follows:

(a) that the trial was not a nullity but contains such irregularities in procedure so serious that this Court cannot say there has been no miscarriage of justice.

(b) that the evidence taken as a whole discloses a substantial case against the appellant;

(c) that there are no special circumstances as would make are-trial oppressive; that the offence charged is a grave one; and that to refuse a retrial will occasion a greater injustice than to grant it.

All these circumstances must co-exist. See Akwa v The State (1969) 1 All N.L.R. 133. In a recent decision of this Court in Sunday Okoduwa & Ors. v The State (1988) 2 N.W.L.R. (Pt.76) 333 these principles were renunciated and applied. Applying the above principles in the instant case, I have no difficulty in answering questions (a) and (d) in the positive. As there was no sufficient evidence in support of the charge before the court, nor that the two lower courts did not deal with the conflicts alleged to exist between the evidence of p.W.3 and P.W.4, but that they did not resolve it properly. In my opinion that limited issue is not one that is relevant to the consideration of an order of retrial; and, if it is, it is not a sufficient ground to refuse it, on (c) the only ground I can see for serious consideration is the length of time that has elapsed since the incident a space of nearly nine years, and the effect it would have on the recollections of witnesses excepting, of course, they are “tutored.” I should presume that the counsel for the prosecution shall do his official duty in the right spirit of that duty – not particularly interested in securing a conviction by all means, present the facts fairly and impartially as he finds them and in accordance with the dictates of justice (See R v Sugarman (1935) 25 Cr. App. R. 1(9). And, if I am correct in that presumption then the long period of time is an advantage to enure to the benefit of the defence. Paragraph (e) demands justice not only to the appellant but also to the deceased, his relations and dependants, and to society. I believe that the ends of justice demand that the appellant, who is charged with the offence of murder’, should be given a reasonable good legal representation, be tried properly, and be acquitted or convicted properly.

For all I have said above, I allow the appeal, set aside the conviction of, and sentence of death on, the appellant by Esin, J., in the High Court and its confirmation by the Court of Appeal. I order that the appellant be tried de novo by another Judge of the High Court of Akwa Ibom State. In view of the length of time that has elapsed since the date of the alleged offence, I further order that the retrial be accelerated and concluded as soon as possible.

SC.124/1987