Sunday Kajubo V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

The Appellant, Sunday Kajubo was tried by Oshodi, J., of the High Court of Lagos State, Ikeja Judicial Division on a two-count charge of robbery punishable under section 402(2)(a) of the Criminal Code Law, (Cap. 31), Laws of Lagos State. He was found guilty and sentenced to death. His appeal against the conviction and sentence to the Court of Appeal, Lagos Division was also dismissed. He has now further appealed to this Court.

Brief of arguments were filed and exchanged for and against the only ground of appeal in which the competence of the trial was attacked. It reads as follows:

“The trial, conviction and sentence passed on the appellant by the learned trial judge are a nullity because the accused was not arraigned-in accordance with the mandatory provisions of section 215 of the Criminal Procedure Law, Cap 32, Laws of Lagos State”.

In the brief of arguments filed on behalf of the appellant, the issue for determination as couched by learned Counsel is-

“Are the trial, conviction and sentence passed on the appellant a nullity in view of the omission to comply with the express provisions of section 215 of the Criminal Procedure Law, Cap 32, the omission being to state to the accused the offence for which he was charged and to explain it to him”

He submitted that the arraignment of an accused before any court for trial on a criminal charge consists of reading over and explaining the charge to him followed by the taking of his plea. He referred this Court to page 15 where the purported plea of the appellant on the charge as originally filed, and also pages 21-22 where his purported plea on the charge as amended were respectively recorded. He cited the cases of Eyorokoromo v. The State (1979) 6-9 SC. 3 and Macfoy v. United Africa Co. Ltd. (1961) 3 ALL E.R. 1162 to support his submissions. He finally urged the court to declare the proceedings a nullity and set the appellant free.

In reply, learned Counsel for the Respondent conceded the point raised by appellant’s counsel that the trial is a nullity for non-compliance with provision of section 215 of the Criminal Procedure Code Law, thus leading to the contravention of section 33(6)(a) of the 1979 Constitution, but urged the Court, on the authority of Abodundu And Ors. v. The Queen (1959) 4 F.S.C. 70 at 73 to order a fresh trial since there was no trial.

Section 215 of the Criminal Procedure Law (Cap 32) provides as follows:

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

For a valid and proper arraignment of an accused person, the following conditions as contained in the section mentioned (supra), must be satisfied:

1. He shall be placed before the court unfettered unless the court shall see cause to otherwise order;
2. The Charge or Information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court; and
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in section 100 of the Criminal Procedure Law).

Failure to comply with any of these conditions will render the whole trial a nullity. See: Eyorokoromo v. The State (1979) 6-9 SC.3.

I shall now proceed to examine the parts of the record where the purported arraignment of the appellant and the taking of his pleas were recorded.

On 25th August 1981 at page 15 (from line 22) the court proceedings were recorded as follows:

“The Accused person present

Mrs. O. K. Soyemi Alii (S.C.) with her Mrs. Olayinka (S.C.) for the State.

Mr. Olatunbosun for the accused.

Mrs. Soyemi-Alli: This case is for mention and we want a hearing date.

Mr. Olatunbosun: I agree with the learned S.C.

Court: Registrar please take the plea of the accused.

PLEA: Accused: Not Guilty.

Court: Case fixed for hearing on 23/9/81 accused person to be remanded at Maximum Security Prison, Kirikiri until the next adjourned date.”

Then on 21st October 1981, after an amended charge had been filed by the prosecution and a copy of the same served on the appellant, at page 21, (from line 24) the record on that date reads thus:

“Accused present.

Mrs. O.A. Olayinka (S.C.) for the State.

Mr. S. O. Olatunbosun for the Accused.

Mrs. Olayinka: I have filed and served an amended charge in this action.

Court: Registrar take the plea of the accused on the amended charge.

Accused: 1st Count: Pleads Not Guilty.

2nd Count: Pleads Not Guilty.”

Looking at the excerpts of the proceedings quoted supra, I have no hesitation in concluding that the provision of section 215 of the Criminal Procedure Law of Lagos State was only not complied with, but also contravened.

An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the court, followed by taking his plea. See Oyediran v. The Republic (1967) N.M.L.R ..122. As correctly stated by learned Counsel for the respondent in his brief and subject to the provision of section 100 of Criminal Procedure Law, section 215 of Criminal Procedure Law is mandatory and not directory. The mandatory nature of the section is further confirmed by section 33(6)(a) of the 1979 Constitution which provides as follows:

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

(a) to be informed promptly in the language he understands and the detail of the nature of the offence.”

The conditions laid in section 215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution, are not for formality sake but are specifically provided to guarantee the fair trial of an accused person. The trial judge has a bounden duty to secure the compliance with the provisions of both section 215 of the Criminal Procedure Law and section 33(6)(a) of the Constitution by showing that in his record – see Godwin Josiah v. The State (1985) 1 S.C. 406 at 416. The excerpts of the trial court’s proceedings quoted did not show that the conditions laid in section 215 of the Criminal Procedure Law were complied with. It is not enough for the learned trial judge to simply direct the Registrar to take the plea of the accused and then to show on his record of proceedings – “PLEA: ACCUSED: Not Guilty” as done by him at both pages 15 and 21 of the printed record. There is nothing there to show that the charge or charges were even read to the appellant by the Registrar as directed by the learned judge, much less to talk of explaining the same to him in the language he understands. A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite of a valid trial, and where a trial judge proceeded to try the accused without strictly complying with the provisions of section 215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution, the trial would be declared a nullity by an appeal court. See Eyorokoromo v. The State (1979) 6-9 S.C. 3 and Josiah v. The State (1985) 1 S.C. 406, particularly at 416. The proceedings in the trial court as well as in the Court of Appeal are therefore declared null and void.

The next intriguing question is what consequential order this Court should make in the present situation. Learned Counsel for the respondent after referring to decided cases and statutory provisions relating to this question, submitted that an order for a new or fresh trial should be made in order to meet the ends of justice.

I shall try to find out in the legal sense what the words “trial” and “nullity” mean. In Blacks Law Dictionary (5th Edition), at page 1348, “trial” is defined as follows:-

“A judicial examination and determination of issues between the parties; A judicial examination in accordance with the law of the land, or of a cause, either civil or criminal of the issues between the parties, whether of law or fact, before a court that has proper jurisdiction”

while “Nullity” is given the following definition in the same Dictionary at 963:-

“Nothing: no proceeding: an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.”

The effect of the definitions above is that if the proceedings were a nullity, there was no trial and therefore no verdict. Originally, under the old ordinance governing the defunct West African Court of Appeal, the Court was empowered to order a new trial of an accused whenever the proceedings before the trial court were declared a nullity. See: R v. Senvinula & 2 Ors., 12 W.A.C.A. 68. This power was conferred on that court by section 12(5) of the West African Court of Appeal Ordinance (CAP 229), the provision of which reads:-

“(5) Where the Court of Appeal is of the 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.”

The ordinance establishing the Federal Supreme Court did not contain a provision similar to section 12(5) of the repealed Ordinance. When Nigeria became an independent sovereign state, the Federal Supreme Court was replaced by the present Supreme Court, and an Act to amend and consolidate the Law relating to the Court was enacted. The Act is the Supreme Court Act No. 12 of 1960 which also did not contain a provision similar to section 12(5) of the West African Court of Appeal Ordinance.

The power to order a new trial or a fresh trial by the Supreme Court can only arise if there has been a transfer to it, of the complete jurisdiction formerly vested in the West African Court of Appeal or by some specific enactment conferring that power. There has been no transfer of such jurisdiction. The provisions contained in Part IV of the Act states the powers of the Court in relation to criminal appeal before it and does not contain a provision, either express or implied, of making an order of a new trial where the appeal is allowed upon the ground that the proceedings in the trial court are declared a nullity. The case of Abodundu & Ors. v. The Queen cited by Counsel for the respondent is an authority for ordering a retrial as provided for in section 26(2) of the Act.

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:-

“No person who shows that he has been tried by any court of competent jurisdiction 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 evidence, 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 this 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. The appeal succeeds.A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, WALI, J.S.C. and I agree entirely with his reasoning and conclusions.

The State having conceded that the conviction and sentence passed on the appellant by the High Court and confirmed by the Court of Appeal cannot be supported due to the gross irregularity in the trial proceeding, the issue in this appeal became very narrow – namely what order to make. It is clear from the record of proceedings that the learned trial Judge committed a breach of Section 215 of the Criminal Procedure Law of Lagos State as well as Section 33(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979. This serious breach rendered the proceedings a nullity. Learned Counsel for the appellant referred this Court to the cases of Eyorokoromo v The State (1979) 3 L.R.N. 251 and Yesufu Abodundu v The Queen (1959) 4 F.S.C. 70, 73 contending that the last case was not applicable to the present case. I agree that the Abodundu case is not applicable to this case as, indeed here, there has been no trial. The contention of counsel to the appellant that the appellant should not be retried because he has been in custody for 8 years, is unacceptable to me too. Having regard to the prevalence of the offence for which the appellant was charged, and the evidence revealed in the purported trial, I am of the view that this was a proper case for a proper trial of the appellant. This Court, being a Superior Court of Record, has power under Section 33(9) of the 1979 Constitution to order such a trial and I so order. In the result, I too would allow the appeal but order a trial of the appellant as per the terms of the order contained in the lead judgment of my learned brother, Wali, J.S.C.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in advance the judgment read by my learned brother Wali, J.S.C. and I agree with the reasons and conclusion therein. Accordingly, the appeal succeeds. I endorse the order for a fresh trial before another judge of the High Court of Lagos State.

C. A. OPUTA, J.S.C.: The Appellant was charged in the first instance with the offence of Robbery punishable under Section 402(2)(a) of the Criminal Code Law, Cap 31 Laws of Lagos State 1973. On the 25th day of August 1981 when the case was called up for hearing, Oshodi, J. requested the Registrar to take the plea of the Appellant and then made the following notes:-

“Court: Registrar please take the plea of the accused.

Plea: Accused: Not Guilty.

Court: Case fixed for hearing on 2319/81 accused person to be remanded at Maximum Security Prison Kirikiri until the next adjourned date.”

On the 30th September 1981, the trial of the Appellant commenced on the plea as recorded above, and Birikisu Salami P.W.1, Falilatu Salami P.W.2, Corporal No. 35332, Augustine Adu P.W.3, all testified for the prosecution. On the 21st October 1981, the charge was amended by the addition of a second count again of robbery punishable under Section 402(2)(a) of the Criminal Code Law, Cap 31, Laws of Lagos State. As would be expected, the Appellant was asked to plead to the amended charge and again as happened when the original charge was pleaded to, the learned trial judge recorded as follows:-

“Court: Registrar take the plea of the accused on the amended charge.

Accused: 1st Count: Pleads Not Guilty.

2nd Count: Pleads Not Guilty.

Court: Does anyone intend to recall any of the past witnesses

Mr. Olatunbosun: I do not intend to recall any witness.”

On the 27th April 1982, the case proceeded after a series of adjournments and the prosecution called Ajisafe Balogun as its P. W.4. After a series of adjournments at the instance of the State, the learned trial judge at p.28 of the record “ordered that the case of the prosecution is deemed closed”. The Appellant gave sworn evidence in his own defence, indicated he had a witness (see p.31 of the record) but somehow that witness was not called and the record does not show that the defence was formally closed on or before 21st December 1982 when counsel on both sides addressed the Court.

At the end of the trial as shown above, the learned trial judge found the Appellant not guilty on Count 2 and discharged him on that Count. He however found him guilty on Count 1 and sentenced him to death by hanging or “to execution by firing squad”. His appeal to the Court of Appeal, Lagos Division was dismissed. He has now appealed to this Court, not on the merits of the ease as such, but, on the failure of the trial Court to observe the necessary statutory preliminaries requisite for a valid and proper arraignment. It is necessary to emphasise this point now, because it will profoundly influence what order this Court should make at the end of the day.

From the Brief filed by H. A. Lardner, S.A.N., learned counsel for the Appellant, there is only one Issue For Determination viz:-

Are the trial conviction and sentence passed on the appellant not a nullity in view of the omission to comply with the express provisions of Section 215 of the Criminal Procedure Law, Cap 32, the omission being to state to the accused the offence for which he was charged and to explain it to him

The Director for Public Prosecution Lagos State, A.N. Kesington for the Respondent in a very well written Brief formulated Two Issues For Determination namely:-

1. Was there in this case sufficient compliance with Sections 353(1) and 215 of the Criminal Procedure Law Cap 31 Laws of Lagos State
2. If and when the Appellate Court rules that a trial is a nullity what consequential order should it make

I agree with the learned Director of Public Prosecutions that two issues for consideration and decision in this appeal. In my view the second issue is of vital importance for the avoidance of the ugly spectacle of law triumphing over justice.

I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Wali, J.S.C. and I am in complete and agreement with his reasoning and conclusion. Since the Respondent did oppose the appeal- in fact the Respondent argued more vigorously than the Appellant that the appeal be allowed – the only outstanding live issue is the consequential order to be made after allowing the appeal. On this issue there are so many decided cases that it behoves this Court to see if some clear principle or principles can be distilled from them. It is on this score that I am adding my own comments to the points so ably made in the lead judgment merely for greater emphasis. The points on which I will like to concentrate are two, namely:-

1. From the ratio, obiter and orders made in those judgment can one say that there is a difference in essence between trial: new trial: retrial: trial de novo: venire de novo
2. Is the emphasis not really more on the reasons for ordering a trial or a new trial or a retrial after allowing an appeal than on the terminology used in the Order

A trial on an information starts with arraignment and under our law (S.353 C.P.A.) arraignment has to be in accordance with definite rules and procedure set out in Part XXIV of the Criminal Procedure Act Cap 43 of 1958. Under this Part appears S.215 of the Criminal Procedure Act which stipulates:-

“215 – The person to be tried upon any charge or information shall placed before the Court unfettered unless the Court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served/therewith”

(the italics above are mine for further comments and observations).

Even before arraignment our 1979 Constitution provides in its Section 32(3) that:-

“Any person who is arrested or detained shall be informed in writing within 24 hours (and in a language he understands) of the facts and grounds of his arrest or detention”.

Also Section 33(6)(a) of the self same Constitution stipulates that:-

“33(6) – Every person who is charged with a criminal offence shall be entitled

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence”.

There is thus a vital, radical and fundamental constitutional requirement anyone arrested and/or charged with an offence has a right, a constitutional right, to be informed of the nature and details of the offence alleged him. And this information should be in the language the person arrested or charged understands.

The mandatory provisions of Section 215 of the Criminal Procedure Act the information or charge should be firstly read over to the accused, then secondly, explained to the accused and thirdly, explained to him to the satisfaction of the Court are not merely cosmetic; they are not mere semantics- No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea, Section 215 C.P.A. sets out the mandatory rules required by law for a proper arraignment.

Now arraignment is ad rationem ponere; it is calling an accused person to reckoning. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him It is a notorious fact that English, the language of the Court, the language in which charges and informations are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and that even those of them who are literate may not easily follow and comprehend the language of the Court. For these reasons, our Criminal jurisprudence and our 1979 Constitution considered it necessary that for there to be a proper arraignment:-

(i) The accused person shall be present in Court.

(ii) The charge or information shall be read over to him in a language he understands.

(iii) The charge or information after being read over in such language should then be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint the accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.

(iv) To make assurance doubly sure the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.

It is good practice for trial Courts to specifically record that “the charge was read and fully explained to the accused to the satisfaction of the Court” before then recording his plea thereto.

In the case now on appeal, the learned trial judge merely asked the Registrar:-

“Court: Registrar please take the plea of the accused.

Plea: Accused: Not Guilty”.

The same procedure was adopted when the charge was amended:-

“Court: Registrar take the plea of the accused on amended

charge.

Accused: 1st Count: Pleads Not Guilty

2nd Count: Pleads Not Guilty”.

In either case, there was nothing on record to show that the charge was in fact read over to the Appellant, and explained to him to the satisfaction of the Court before he pleaded. The same goes for the amended charge. This is a fundamental and radical vice which nullified the entire arraignment and consequentially the trial that followed: see Omakinde Sanmabo v. The State (1967) N.M.L.R. 314 at p.317. The learned Director of Public Prosecutions Lagos State (A.N. Kesington) as an officer of court and an impartial minister in the sacred temple of justice readily, in his Brief, conceded that the trial of the Appellant was a nullity. He also conceded that the appeal judgment of the Court of Appeal, Lagos Division (coram Ademola, Nnaemeka-Agu and Uthman Mohammed, JJ.C.A.) was also a nullity. This is how it should be. To admit the obvious does save time. It also shows maturity. Since this (the result of failure to observe and apply strictly the provisions of Section 215 of the C.P.A.) was the only issue raised in the Appellant’s solitary ground of appeal and the Brief filed by H.A. Lardner ,learned Senior Advocate for the Appellant, the appeal succeeds and the conviction and sentence of Oshodi, J., the learned trial judge, and the appeal judgment of the Court of Appeal Lagos Division are hereby quashed and set aside respectively.

Will this then be the end of this appeal I hope not. Even if the law requires it to be so (which is not even the case) justice would have been compromised in the process. A criminal trial is or ought to be the process of finding out the truth of any criminous charge and then doing justice by appropriate requital, that is to say, acquittal for innocence and conviction for guilt. This appeal, as I observed earlier on, was not argued on its merit. The appeal succeeded on an objection that the arraignment of the Appellant offending Section 215.of the C.P.A. was erroneous and improper and that, that error was a fundamental vice, which rendered the trial and the subsequent appeal null and void. 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 Any Court discharging such an Appellant would naturally add – “Would to God you were innocent”. And as stated by Bridgman, L.C.B. in Lilburn’s case (1660) 5 HOW St. Tr. 1205 “the word innocent hath a double acceptation, innocent in respect of malice, and innocent in respect of the fact”. From either “acceptation” the present Appellant cannot at this stage, when his purported trial has been declared null and void, be declared innocent.

Learned counsel E. Glu Akintunde Esq. who appeared for the Appellant relying on Yesufu Abodundu & 4 Ors. V. The Queen (1959) 4 F.S.C. 70 at 74 asked that the appeal be allowed and that as was done in the Abodundu’s case supra “we direct that a judgment and verdict of acquittal be entered” for the Appellant. 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 had 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 in favour of and in sympathy with Appellant and we may in like manner be thus tempted to sympathies with any prisoner in the position of the present Appellant. But one has to sound a note of serious warning against giving way 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. Earle, J. in Reg v. Baldry (1852) 5 Cox C.C. 523 at p.531/532 seems to hit the nail at the head when he remarked:-

“I agree with Mr. Pitt Taylor that in many cases, justice and common sense have been sacrificed – but not as it appears to me at the shrine of mercy – rather at the shrine of guilt; because I regard a wrongful acquittal as unmerciful to the prisoner, whose real interests are sacrificed by his escape, as well as to society”.

This Court will not endure a success in a mere formal objection or (as in this case) success of a submission that the arraignment in this case was not in compliance with the procedural rules made for valid arraignment; and I would here emphasise that those rules were introduced for the sake of justice – the Court should not allow such successful objections or submissions to work a wrong contrary to the real truth, substance and justice of the case.

Now since the purported trial of the Appellant has been declared a nullity the Question No.2 in the Respondent’s Brief calls for an answer. What consequential Order or Orders should the Court make in this appeal One has to keep in mind the extremely important fact that this court is a creature of Statute and that its powers are therefore given or else circumscribed by Statute. Section 26(2) of the Supreme Court Act No. 12 of 1960 prescribes:-

“S.26-2

Subject to the special provisions of this Act, 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”.

There is thus power and jurisdiction in the Court to make a consequential Order for a retrial after allowing an appeal and quashing a conviction as was done in this appeal.

Also Section 30 of the Supreme Court Act No. 12 of 1960 empowered this Court on the hearing of an appeal “to order the case to be retried by a Court of competent jurisdiction”. Section 26(2) and Section 30 above both talk of a retrial. The question now arises – Can there be a retrial where, as in this case, the purported trial was held to be a nullity, null and void ab initio To my mind the distinction between a retrial, a new trial or trial de novo or fresh hearing is neither essential, nor substantial, nor material. Each is substantially a trial as each has the essential element of a trial- that is the finding out by due examination, the truth of the point in issue or question in controversy between the parties whereupon judgment may be given (Co. Litt 124b).To my mind it is just a question of semantics. When as in this case, a trial is declared a nullity, it does not mean that the factum of trial did not exist. There was a defacto trial, call it a purported trial if you please. Witnesses were called on both sides, counsel for either side addressed the Court and finally the trial Court evaluated the evidence, made its findings and returned its verdict. But because there was a failure to observe the legal and constitutional rules relating to arraignment and the taking of the plea of the Appellant, this Court declared that, de jure; that in the contemplation of law, the trial amounted to a no trial. An Order for a retrial or a new trial or trial de novo or a venire de novo is an Order that the whole case should be retried or tried de novo or tried anew as if no trial whatever had been had in the first instance.

But since neither the Supreme Court Act No.12 of 1960, nor the Interpretation Act Cap 89 of 1958, nor the Criminal Procedure Act Cap 42 of 1958, nor the Interpretation Section (S.277) of the 1979 Constitution gave any statutory definition of retrial to help us determine whether retrial means the same thing as trial de novo or a new trial, one has to fall back on decided cases to discover the meaning of “retrial” and the extent of the power conferred on this Court by the Supreme Court Act (Section 26(2) and 30) to order a retrial. In Moses Okoro v. Inspector-General of Police (1953) 14 W.A.C.A.370 the trial was declared a nullity because an essential ingredient of an offence under Section 100 of the Criminal Code, namely that the accused was a person employed in the public service, was not alleged. Section 12(5) of the West African Court of Appeal Ordinance provided that:-

“When the Court of Appeal is of the 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”.

Section 12(5) of the West African Court of Appeal Ordinance did not use the expression “be re-tried by a Court of competent jurisdiction”. It gave the Court power if it liked “to order the appellant to be tried by a Court of competent jurisdiction”. That power was not even used in Okaro’s case as the Court held that an order for trial under the section was not imperative. Okoro’s case supra is not of much help here in deciding whether the power to order a trial is the same as the power to order a retrial because Section 12(5) of the West African Court of Appeal Ordinance is not in pari materia with Sections 26(2) and 30 of the Supreme Court Act 1960. One gave the Court the power to order a trial; the other gave the power to order a re-trial. But I will not fail to mention that Okoro’s case has been criticised in later judgments: see Anu v I.G. of Police (1958) 3 F.S.C. 34 atp.35: see also Queen v. Ijoma (1962) 1 All N.L.R. 402. But the main criticism levelled against Okoro’s case supra did not relate to the power of the Court of Appeal “to order a trial” after declaring the original trial a nullity but rather on whether Okoro was right in not holding that the information was merely defective and that the appellant pleaded not guilty and was not shown to have been embarrassed. The Court should then have considered whether that defect occasioned a substantial miscarriage of justice and if not dismiss the appeal. Also a trial was not ordered in Okoro’s case because for as could easily be gathered from the judgment there was no valid charge on which to order the subsequent trial in compliance with Section 12(5) of the West African Court of Appeal Ordinance Cap 229 of 1948.

In Abondundu & 4 Ors. v. The Queen (1959) 4 F.S.C. 70 at pp.71/72 the Federal Supreme Court considered the power to order a retrial and formulated five principles on which the Court should act in considering the exercise of that power namely:-

“(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice. and to invoke the proviso to Section 11(1) of the Ordinance;

(b) that leaving aside the error or irregularity, the evidence taken ‘as

a whole discloses a substantial case against the appellant;

(c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;

(d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial;

and

(e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.”

In Abodundu’s case supra the Federal Supreme Court applied those five principles and came to the conclusion “that it would not be right to order the retrial of the five appellants”. Does this not go to show that if it would be right a retrial would be ordered It is however important to note that the Court in Abodundu’s case supra was at great pains to point out that it was not laying down hard and fast rules but merely laying down some guide for the exercise of the Court’s discretionary power. The same reluctance to lay down principles to be applied in all future cases clearly appear in Reid v. The Queen (1979) W.L.R. 221 at p.226.

Again this Court in Abu Ankwa v The State (1969) 1 All N.L.R. 133 seemed to approve the principles laid down in Abodundu’s case supra and went further to hold that “all these factors must co-exist so that a case may be sent back for re-trial. The refusal to send Abu Ankwa for a re-trial was however based on the unarguable fact “that a Court of Appeal will not send a case back for a re-trial simply for the purpose of enabling the prosecution to adduce, as against the appellant, evidence which must convict him when his success at the appeal is based on the absence of that same evidence”.

It has to be clearly noted that the principles formulated notwithstanding, the facts of this case now on appeal, are by no means similar to those in either Abodundu or Ankwa supra. This appeal succeeded only on the failure of the trial Court to observe the correct procedure for proper and valid arrangement. There was no breach of any rules of evidence as in Abodundu, nor was there any discrepancies in the evidence of prosecution witnesses creating grave doubts, the benefit of which should lawfully have been resolved in favour of the appellant as happened in Ankwa’s case supra.

In Onu Okafor v. The State (1976) 5 S.C. 13 at pp. 19/20 this Court again re-affirmed the five principles formulated by the Federal Supreme Court in Abodundu’s case supra and held that “this Court will not grant a new trial unless, at least all the above five facts co-exist and it has said so on a number of occasions(see also Ankwa v The State (1969) 1 All N.L.R. 133); and in any event a re-trial will not be ordered, merely because, if ordered, the prosecution would have the opportunity of remedying a defect in their case in order to secure a conviction of the appellant. Re-trial implies that there was a former trial, and so this Court will not “grant a new trial (or re-trial) upon a trial which was null and void (see also Moses Okoro v The State (1953) 14 W.A.C.A. 370”).

Three things appear in bold relief from this case:

(i) The expressions “a new trial” and” a re-trial” were used as if they are inter-changeable; as if they mean one and the same thing.

(ii) The defect in Onu Okafor’s case supra was that the information was preferred without jurisdiction and the trial was (as in the case now on appeal) a nullity though for a different reason.

(iii) In Onu Okafor’s case supra this Court quashed the conviction and set aside the sentence of the trial Court and observed “It is left to the Prosecution to take what (if any) steps they may think fit and proper”.

Was there then a lingering hope that without the Court taking a definite and specific order for a “Re-trial” or “for a new trial” the prosecution was not thereby precluded from proceeding afresh and anew against the appellant denovo as he could not possibly plead autrefois convict since his first trial was a nullity But what is most important is that Onu Okafor’s case was decided in 1976 before the coming into force of the 1979 Constitution.

Case law has not been consistent in its dealing with the question whether or not a re-trial may be ordered as a consequential order after an appeal has been allowed for on the other side of the line are numerous cases where Abodundu was considered and still yet a retrial was ordered: The Queen v. Michael Ogor(1961) All N.L.R. 70 dealth inter alia with the fitness of the appellant to even plead. At the end of the day the Federal Supreme Court ruled at p.77:-

“The appeal succeeds on the first ground (fitness to plead) and there is no need to consider any other ground. This Court has power under Section 26(2) of the Federal ,Supreme Court Ordinance to order a re-trial, the use of that power is explained in Abodundu & ors. v The Queen 4 F.S.C. 70….. The order we make is as follows:-

The conviction is quashed with the sentence, and the appellant Michael Ogor is ordered 10 be tried before a Court of competent jurisdiction presided over by another judge….”

Now the expression used by Section 26(2) of the Federal Supreme Court Ordinance 1960 is “order the appellant to be retried” but the order made by the court in Ogor’s case was an order “to be tried”, I then ask again – Are the two expressions inter-changeable

In Queen v Edache (1962) 1 All N.L.R. 22 a case of culpable homicide, S.26(2) of the Federal Supreme Court Ordinance No. 12 of 1960 was applied and the appeal was allowed, conviction quashed and a Re-trial ordered.

But the case closest to the one now on appeal is Raimi Adisa v Attorney-General, Western Nigeria (1965) 1 All N.L.R. 412. Both dealt with arraignment and the plea or want of it, of the appellant. In Adisa’s case there was an amendment to the charge but no plea was taken on the amended charge; (which rendered the trial a nullity); in the case now on appeal, the plea was irregularly taken (which also rendered the trial a nullity); in both the appellants were convicted; in both the appeals were allowed; in both the case of Abodundu supra was relied upon. In Adisa supra this Court ended thus at P.416:-

“It remains for us to decide whether this is a matter which should be sent back for retrial or not. After the most anxious consideration, we think, in the circumstances of this case and having taking into account the principles set down by this Court in R v. Yesufu Abodundu & ors, (1959) 4 F.S. C. 70 at p.73, we are of the view that the case be sent back to the High Court Ibadan Judicial Division of Western Nigeria for afresh hearing”.

It is here important to note that the expressions “retrial” or “trial” were carefully avoided and a new expression “a fresh hearing” was used. Could “a fresh hearing” mean a retrial or a trial de novo I think so.

The cases I have reviewed above definitely show that under Section 26(2) and Section 30 of the Supreme Court Act No. 12 of 1960, this Court has the power in appropriate cases to order a retrial. They also show that the expressions “trial”, “new trial”, “trial de novo”, “retrial”, “fresh hearing”, “trial a second time” have been freely used in these judgments. This suggests that these expressions are inter-changeable as they relate to the same concept-that is, finding out by due examination of witnesses the truth of a point in issue or a question in controversy where-upon judgment may be given. Call it any name and it will make no difference for a rose by any other name smells equally sweet.

These cases show that what is important is whether evidence as a whole discloses a substantial case against the appellant, and whether there are or are not such special circumstances as would render it oppressive to put the appellant on trial a second time or to order him to be retried, or order fresh hearing

But if there is still any difficulty with the use of the familiar words like “trial”, “retrial”, “a new trial”, “fresh hearing” etc the 1979 Constitution has removed all such difficulties. Section 33(9) of the 1979 Constitution as amended provides:-

“33-9 No person who shows that he has been tried by any Court of competent jurisdiction for a criminal offence and either convicted and 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”.

This Court is not only a superior Court but it is also the most superior of the Courts in this country. Once it makes an order for either the trial, or retrial, or new trial, of the Appellant as the case may be, that order has now the backing of the Constitution and it will then be futile to argue that having declared the first trial a nullity a retrial cannot be ordered. In my view Section 33(9)of the 1979 Constitution fortifies, animates and strengthens Section 26(2) and Section 30 of the Supreme Court Act No. 12 of 1960 and takes the heat off any arguments based on mere words – whether it be trial or retrial that had to be used in the Order. In Godwin Josiah v. The State (1985) 1 N.W.L.R. 125 the appeal was allowed and some Justices sent the case back for a retrial, others remitted same for trial. They were all right: see also Crane v. D.P.P. (1921) 15 C.R. App.R.183.

In the case of the present Appellant, the appeal was not argued on the merit. The evidence does disclose a substantial case against him (the Appellant). His right to his freedom has to be weighed against the security of the general public who are entitled to be protected from armed robbers. Also the interest of justice demands that his case be properly tried so that he be acquitted and discharged on the merit or else found guilty and convicted also on the merit.

This naturally leads to the questions – Can and when should a new trial or retrial be ordered after declaring a trial a nullity and allowing the appeal If an appeal is dismissed that question will not arise. The answer to the question can a new trial be ordered is definitely yes. Part of the answer to the question when such a trial can be ordered can be found in principles (b), (c), (d) and (e) as formulated in Abodundu’s case supra and part of it will be found in the reason for declaring the trial a nullity and the overall interest of justice. A trial may be declared a nullity on many grounds:-

(i) The charge itself may be incurably defective as was the case in Okoro’s case supra.

(ii) The arraignment may be irregular null and void as happened in the case now on appeal.

(iii) The trial Court may have no jurisdiction to try the case as in R v. Shodipo 12 W.A.C.A. 374 or Oruche v. C.O.P. (1963) 1 All N.L.R. 262.

(iv) The trial may be null and void as a result of a serious error or blunder committed by the trial Court as we done in Adisa’s case supra where there was a total failure to ask the appellant to plead to the amended charge.

The general statement made in Onu Okafor’s case supra at p.20 that “Retrial implies that there was a former trial and so this Court will not grant a new trial (or retrial) upon a trial which was null and void” does not now seem to represent the true legal position especially after the decision of this Court in Sele Eyorokoromo and anor. v. The State (1979) 6-9 SC 3 at pp.11/12.

A new trial or retrial can definitely be ordered if the interest of justice so requires: see Reid v. The Queen (1979) 2 W.L.R. 221 atp.226. In this case the interest of justice does require that the Appellant be properly tried.

In the final result and for all the reasons given above and for the further reasons given in the lead judgment of my learned brother Wali, J.S.C. which I now adopt as mine, I, too, will allow this appeal and order that the Appellant be sent to a competent High Court of Laos State to stand his trial or to be retried.

E. B. CRAIG, J.S.C.: I have had a preview of the judgment of my learned brother, Wali, J .S.C., and I agree with his reasoning and conclusions. For the reasons stated in the lead judgment, I would also allow this appeal and order a fresh trial of the appellant before another Judge.

Appeal allowed

Retrial Ordered.

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SC.4/1986