Sele Eyorokoromo V. The State (1979)
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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.”
Upon the establishment of the Federal Supreme Court in 1955, the West African Court of Appeal Ordinance aforementioned became the Federal Supreme Court Ordinance . See Adaptation of Laws (Judicial Provisions) Order, 1955. Later on, in the year, Section 11(2) of the said Ordinance was amended by the Federal Supreme Court (Appeals) (Amendment) Ordinance, 1955 by conferring on the Federal Supreme Court power to order a trial in case of conviction by a High Court. The sub-section read – “(2) Subject to the special provisions of this Ordinance, the Court of Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or, in the case of a conviction by or in a High Court, order the appellant to be tried by a court of competent jurisdiction.” (The underlining was inserted by the amendment. See also Section 15(2) of the Federal Supreme Court (Appeals) Ordinance, Cap.67, Laws of the Federation, 1958. The above was in addition to the power of the Federal Supreme Court under Section 12(5) of the Ordinance to order a trial where it declared proceedings a nullity. See also Section 16(5) of the Federal Supreme Court (Appeals) Ordinance aforementioned.
It appears that in 1960 there was a radical change of policy pertaining to the power of appeal courts to order a retrial. For the first time full and general power was conferred on the Federal Supreme Court by the Federal Supreme Court Ordinance, 1960 to order a retrial in all appeals before it. In respect of appeals in criminal cases from a court sitting as a court of first instance, Section 26(2) of the Ordinance provided: “(2) Subject to the special provisions of this Ordinance, the Supreme Court 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.” Section 30 which covered appeals in criminal cases from a High Court sitting in its appellate jurisdiction read: “30. On the hearing of an appeal under this part, the Supreme Court may exercise any power that could have been exercised by the High Court or may order the case to be retried by a court of competent jurisdiction.”
It may be observed that Section 26(2) and 30 aforementioned were re-enacted as Sections 26(2) and 30 of the Supreme Court Act, 1960. In consequence of the establishment of the Federal Court of Appeal in 1976, in addition to the amendment of the heading to Part V, Section 30 of the Act was amended by substituting the words “The Federal Court of Appeal” for the words “a High Court”: See Constitution (Amendment) (No.2) Decree, 1976, Section 3 of the Schedule. We may summarise the position thus: The West African Court of Appeal had no power to order a retrial at all but where it declared proceedings a nullity, it had discretion to order a trial. In addition to this power of the West African Court of Appeal which was inherited by the Federal Supreme Court, the latter court was empowered to order a trial in respect of a conviction by a High Court. It was only in 1960 that the Supreme Court was vested with full and general power to order a retrial and for the first time the word “retrial” was introduced in the scheme of legislation on the matter. Reference may now be made to some nullity cases for the purpose of discovering the attitude of the appeal courts mentioned above in the exercise of their respective discretion to order the appellant “to be tried” or to order him “to be retried”, as the case may be, depending on the words of the relevant enactments. It is pertinent, however, to point out that a trial may be a nullity on one of the following grounds. Firstly, that the very foundation of the trial, that is the charge or information, may be null and void; secondly, the trial court may have no jurisdiction to try the offence; and thirdly, the trial may be rendered a nullity because of some serious error or blunder committed by the Judge in the course of the trial. We intend to examine cases falling within these three classes of nullity. Okoro v. Police (supra) was a case of which its very foundation, i.e. the charge, was null and void. Okoro was convicted on a defective charge which did not contain an essential element of the offence. The West African Court of Appeal declared the trial a nullity and abstained from exercising their discretion to order a trial because according to them the “appellant was arraigned on a non-existent charge”. We may pause to observe that it appears that that court declined to order a trial not simply because the trial was a nullity but because there was no valid charge upon which a trial could have been ordered. Although Okoro’s case was not mentioned in the judgment of the Federal Supreme Court in The Queen v. Azu A. Owoh & Ors. (1962) 1 All NLR. (Pt. 4) 659, it appears that court came to the same decision as in Okoro’s case. The appellants in Owoh’s case were convicted of regional offences on an information filed by the Attorney-General of the Federation, who had no power to prosecute regional offences.
The Federal Supreme Court set aside the convictions on the ground that the trial was a nullity. On the question of retrial, the court stated at p.662 of the reports: “We do not consider that the power of ordering a retrial under Section 26(2) of the Federal Supreme Court Act, 1960 applies in the circumstances of this case, where there is no information on which the appellants can be tried, and we make no order on the matter.” Although this court did not specifically state so in the judgment in that case, we think the principle that retrial may not generally be granted where there is no valid charge or information could have also been applied in Onu Okafor v. The State (supra) in which the appellant was convicted of a charge on information preferred without having complied with the provisions of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 of the then East Central State. On appeal, this court quashed the conviction and set aside the sentence on the ground that as the information was preferred without jurisdiction the trial was a nullity, and on that ground alone, the court refused to order a retrial.
On the other hand, there are cases such as Rex v. Shodipo (1948) 12 WACA 374 which pointed to another direction in that a retrial was ordered although there was no valid charge or information at the trial. In Sodipo’s case the offence was committed in one magisterial district but the preliminary inquiry was held and the committal order for trial was made by a magistrate of another magisterial district. The West African Court of Appeal held that as the committing magistrate had no jurisdiction to conduct the preliminary inquiry, the proceedings before him including the committal for trial were a nullity and consequently the trial in the then Supreme Court was also a nullity. The court set aside the conviction and sentence and ordered the case to be tried by a court of competent jurisdiction. Alphonsus Oruche v. Commissioner of Police (supra) was more remarkable in this respect. Oruche was convicted by a magistrate on a charge laid under the Penal Code which came into force in September 1960 while the offence had been committed in June, 1960 before the Code came into force. The High Court of Northern Region quashed the conviction on the ground that the trial was a nullity and ordered a retrial on a charge under Criminal Code. The Federal Supreme Court confirmed the order for a retrial. Arisah & Another v. Commissioner of Police (1948) 12 WACA 297 and Raimi Adisa v. Attorney-General, Western Nigeria (1966) NMLR 144 may be cited as belonging to the class of cases where, in the course of the trial, the trial Judge committed an error which rendered the trial null and the appeal court ordered retrial.
Although the same error was committed in The Queen v. Ogunremi (1961) 1 All NLR. 467 as was done in Adisa’s case, to wit failure to call upon an accused person to plead to a charge which was altered by amendment during the course of the trial, the Federal Supreme Court did not order a retrial because of the merit of the case. The same decision was reached by this court in Joseph Okosun v. The State (1979) 3 and 4 S.C. 36. From the foregoing it seems to us that the preponderance of the authorities does not support Appellants’ counsel’s proposition that where a trial was a nullity, a retrial would not be granted on that ground alone. On the contrary, until 1955 a new trial could only be granted where the trial was a nullity. The main ground of appeal therefore fails. The new point No.1 in which learned counsel for the appellants argued that the Court of Appeal erred in law in failing to comply with Section 20(2) of the Federal Court of Appeal Decree, 1976 may be summarily disposed of. We entirely agree with the submission of learned counsel that the power of the Court of Appeal to order a retrial in criminal cases is derived from Section 20(2) of the Decree and can only be exercised where the Court of Appeal has allowed an appeal and set aside a conviction. The sub-section reads: “(2) Subject to the provisions of this Decree, 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.”
It is our considered opinion that, notwithstanding that the trial was a nullity, there was a de facto conviction which, in the terms of the sub-section, must be quashed. The Court of Appeal therefore erred in law in omitting to quash the conviction. We think, however, that error was of a mere technical slip, which does not affect the merit of the order for a retrial and which in exercise of our power under Section 30 of the Supreme Court Act, we may correct. Accordingly, the conviction is hereby quashed and the sentence set aside. In this connection we may point out that cases such as Oladimeji v. The King (1951) 13 WACA. 275 and Moses Okoro v. The Police (supra) in which the West African Court of Appeal simply declared the trial a nullity without quashing the conviction are not relevant because they were decided in accordance with the provisions of Section 12(5) of the West African Court of Appeal Ordinance earlier referred to. That sub-section has no equivalent in the Decree constituting the Court of Appeal.
Finally, learned counsel argued new point No.2, which reads: “2. The Federal Court of Appeal erred in law in ordering the retrial of the appellants without considering the application of the principal State Counsel for retrial in the light of the five conditions laid down in Abodundu and Ors. v. The Queen 1959 4 FSC 70 at 73-74 and affirmed in several Supreme Court Judgments.” Learned counsel submitted that before deciding to order a retrial the Court of Appeal was duty bound to examine the evidence properly adduced in the High Court to ascertain that the evidence taken as a whole discloses a substantial case against the appellants and to ensure that a retrial would not occasion a greater miscarriage of justice to the appellants. Learned counsel further submitted that had the Court of Appeal examined the evidence it would have found that there was no substantial case against the appellants and the retrial would occasion a greater miscarriage of justice to them. He concluded that the Court of Appeal had failed to discharge that duty and thereby erred in law in ordering a retrial.
Now the power of the Court of Appeal to order a retrial in criminal cases is conferred by Section 20(2) of the Decree in identical words with Section 26(2) of the Supreme Court Act. It follows therefore that the principles in Yesufu Abodundu & Ors. v. The Queen (supra), which are the guiding principles under which this court will order a retrial, are applicable in the Court of Appeal in exercise of their discretion under Section 20(2) of the Decree.
To exercise that discretion judicially call for the examination by the Court of Appeal of the whole record of proceedings of the trial court to ascertain whether or not the evidence and the circumstances of the case came within those principles. On the face of records it has not been shown that the Court of Appeal examined the evidence before ordering a retrial and did not give its reasons for a retrial. But a similar situation arose in Au Pui-Kueh v. Attorney-General of Hong Kong (1979) 2 WLR. 274 where the Privy Council stated at p.278:
“In the instant case, their Lordships do not know all the factors that the majority of the Court of Appeal took into account in reaching their decisions of February 17, 1977, that there should be a new trial: for neither at that time nor thereafter have they given their reasons for it. If a new trial is to be ordered it is often the case that in the interests of justice at the fresh trial, the less said by the Court of Appeal, the better. In the absence of disclosed reasons their Lordships can infer that the Court of Appeal took into account the matters urged upon them by counsel for defendant.” We will draw the same inference in the case in hand as the Privy Council did. Now what were the matters urged upon the Court of Appeal by counsel for the appellants?
The dialogue is short:- “Okungbowa (Principal State Counsel for respondent): As far as I can trace no plea was taken throughout the trial. I concede there was no valid trial. It was a nullity. I urge the court to send the case back to the High Court for a proper trial. Akere (Counsel for the appellants): We have no objection to the case being sent back for retrial. We would ask that order be made for the case to be tried expeditiously.”
Accordingly, the Court of Appeal made the order. It is reasonable to infer that before conceding to a retrial, learned counsel for the appellants had read the records of the trial and was satisfied that all the factors warranting a retrial existed. We have read and considered the evidence adduced at the trial in the High Court and we are satisfied that it is a proper case to order a retrial.
We think we should remind ourselves of the warning given by the Federal Supreme Court when it formulated the principles of Yesufu Abodundu’s case and which warning this court has appeared to have overlooked during the years in reiterating those principles. The Federal Supreme Court stated thus at p.73: “We have considered the cases cited by Mr. Lloyd but have been unable to extract from them any guiding principles. We have therefore (and as this is one of the first cases in which the exercise of the power to order a retrial has been argued in this court) endeavored to formulate the principles on which this court should act in considering the exercise of that power. 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 impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles, or to modify those we have formulated in this judgment. We wish to make it clear that the court will be free to do this without infringing the doctrine of judicial precedent.”
In their attempt to answer question 4, which reads: “4 What are the principles which should apply in considering whether or not a new trial should be ordered?” The Privy Council in Reid v. The Queen (1979) 2 WLR 221 at 226 also warned of the danger of stating in general terms such principles in these stronger words: “Question (4) is general in its terms and asks for a statement of the principles which should apply in considering whether or not a new trial should be ordered. Their Lordships would be very loth to embark upon a catalogue of factors which may be present in particular cases and, where they are, will call for consideration in determining whether upon the quashing of a conviction the interests of justice do require that a new trial be held.
The danger of such a catalogue is that, despite all warnings, it may come to be treated as exhaustive or the order in which the various factors are listed may come to be regarded as indicative of the comparative weight to be attached to them; whereas there may be factors which in the particular circumstances of some future case might be decisive but which their Lordships have not now the prescience to foresee, while the relative weight to be attached to each one of the several factors which are likely to be relevant in the common run of cases may vary widely from case to case according to its particular circumstances.
The recognition of the factors relevant to the particular case and the assessment of their relative importance are matters which call for the exercise of the collective sense of justice and common sense of the members of the Court of Appeal of Jamaica who are familiar, as their Lordships are not, with local conditions.
What their Lordships now say in an endeavour to provide the assistance sought by certified question (4) must be read with the foregoing warning in mind.” These are our reasons for dismissing the appeal and confirming the order for a retrial.
Other Citation: (1979) LCN/2144(SC)