Sele Eyorokoromo V. The State (1979)

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BELLO, JSC

The principal question for determination in this appeal is whether from the circumstances of the case the Court of Appeal was right in ordering a retrial of the appellants after that court had declared their trial in the High Court a nullity.

The appellants were convicted in the High Court of Bendel State, sitting at Warri, on a charge of murder and were sentenced to death. The only point taken at the hearing of their appeal against conviction in the Court of Appeal was that their trial was a nullity because no plea of the appellants was taken at the trial. The learned Principal State Counsel, who appeared for the respondent in that court, conceded the point but urged that court to order a retrial.

In its summary judgment, the Court of Appeal states: “We are in agreement with the views expressed by Mr. Okungbowa, Principal State Counsel. There is no record of any plea taken. The trial was a complete nullity. There is therefore nothing for us to quash. We order that the appellants be retried by another Judge of the High Court. As this case has been pending since December, 1976, we hope the High Court will see to it that this case is retried without any delay.”

The appellants were not satisfied with the order for a retrial and have appealed to this court on the following grounds:-

“1. The learned Judges of the Court of Appeal erred in law by ordering the retrial of the appllant (sic) when the proper order in circumstances of the appeal would have been that of discharge and acquittal.

2. The learned Judges of the Court of Appeal erred in law in failing to exercise their discretion judiciously in favour of the appellants by ordering his (sic) retrial when the earlier trial was a nullity and the appllant (sic) has kept more than five months in prison as a convict.

3. The learned Judges of the Court of Appeal erred in law in ordering a retrial of the appellant (sic) by the High Court when: (a) There was a full trial before the High Court which was a nullity. (b) The appellant (sic) has been in Prison since 22nd of February, 1978 as a convict.”

The main contention of learned counsel for the appellants, in his brief and his argument before us, is that the Court of Appeal should not have ordered a retrial after it had declared the trial a nullity.

In support of his contention, he referred us to the guiding principles for ordering a retrial as formulated in Yesufu Abodundu & Ors. v. The Queen (1959) 4 FSC 70 at 73-74 and which has persistently been reiterated by this court in such cases as Onu Okafor v. The State (1976) 5 S.C. 13, James Ikhane v. The Commissioner of Police (1977) 6 S.C.119 and Akwa v. The State (1969) All NLR 133. He laid great emphasis on the pronouncement of this court in Onu Okafor v. The State (supra) at p.20:     “In the case in hand the information was preferred without jurisdiction and the trial was a nullity. On that ground alone the application for a new trial will be refused.

Retrial implies that there was a former trial, and so this court will not grant a new trial (retrial) upon a trial which was null and void. (See also Moses Okoro v. The Police (1953) 14 WACA 370)” In his reply the learned Legal Adviser, Bendel State, who represented the respondent, responded that the Court of Appeal has discretion to order a retrial and that it exercised that discretion judicially. He contended that the evidence did disclose a substantial case against the appellants. He cited Ganiyu Adisa Omotayo v. Commissioner of Police (1950) 13 WACA 4 and The Queen v. Yesufu Akanni (1960) 5 FSC 120 as examples of exercise of similar power.

From the outset it may be observed that the validity of Okoro v. The Police (supra) as an authority for saying that if a trial is a nullity , a Court of Appeal should not make an order for a retrial was questioned by the Federal Supreme Court in Alphonsus Oruche v. Commissioner of Police (1963) 1 All NLR 262 at 266 in these terms: “Moses Okoro v. Inspector-General of Police is mentioned in ground (1) apparently as authority for the argument that, if the trial is a nullity through a defect in the charge, there should be no retrial. Okoro was tried under Section 100 of the Criminal Code; the charge should have alleged that he was a person employed in the public service; it did not so allege. The Court of Appeal held that the trial was a nullity but did not order a fresh trial because the only charge before the court was one that was bad. Some words would have had to be added, but amendment was not possible on appeal; apparently the court thought that it was pointless to order a trial on a charge that was bad. Okoro was decided in November, 1953.

It is desirable to point to Anu v. Inspector-General of Police, 3 FSC 34, where Okoro is mentioned at page 35 with an implication of doubt; also to the judgment in The Queen v. Ijoma, FSC. 309/1961, decided on 7th July, 1962, in which R. v. McVitie, (1960) 2 QB 483; 44 Cr. App.R. 201 is cited and followed. The Court of Appeal in Okoro’s case did not have the advantage of McVitie, which was decided in 1960. In any event, there are points of difference.

The charge in Okoro’s case was laid under a section appropriate to the offence alleged; it was, however, a defective charge in its particulars of the offence. Here the charge was laid under an enactment which did not apply: it is not merely a question of defective particulars. Okoro’s case is irrelevant to the circumstances of the case in hand.”   We think the principal question for determination in this appeal calls for a historical review of legislation relating to powers of appeal courts in Nigeria to order a retrial. The West African Court of Appeal had no power at all to order a retrial as such except the powers conferred under the provisions of Section 12(5) of the West African Court of Appeal Ordinance, Cap. 229, 1948 Laws of Nigeria which provided:     “(5) Where the Court of Appeal is of opinion that the proceedings in the trial court were a nullity, either through want of jurisdiction or otherwise, the court may order the appellant to be tried by a court of competent jurisdiction.”