JUDGEMENT DELIVERED BY ABUBAKAR SADIQ UMAR, JSC – SC.889/2017

I have read the draft of the lead judgement just delivered by my Lord Honorable Justice Helen Moronkeji Ogunwumiju, JSC. I agree entirely with reasoning and conclusion reached therein. However, I also want to lend my voice to the reasoning and conclusion in the lead judgement.

This appeal revolves round a very narrow point. It is simply whether in the circumstances of this appeal an order of retrieval will better serve the interest of justice than an order discharging the Appellant. While the Appellant wants a discharge order, the Respondent wants an order of retrial. Both have urged us to accede to their respective prayer.

The background fact, in brief, that led to this appeal is that on the 9th December, 2012 at about midnight, while the Appellant was on duty keeping sentry watch, the deceased walked towards the Appellant aggressively heedless of the Appellant’s order to stop thereby prompting the Appellant to shoot at the person. He was tried and convicted by the Nigerian Army General Court Martial. The proceedings of the GCM was set aside but the lower Court neither discharged him nor order his retrial, thereby keeping him in prison till date.

Section 36 (9) of the 1999 Constitution (as amended), provides “No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court”.

There is no doubt that from the above provision of the constitution both the lower Court and this Court are vested with the requisite jurisdiction to make an order in appropriate cases, for the trial of a person for a criminal offence for which he had earlier been tried by a Court of competent jurisdiction regardless of whether he was convicted or acquitted by that Court for such an offence. It is therefore crystal clear that the lower Court having set aside the proceedings of the General Court Martial which tried and convicted the Appellant upon its finding that it is a nullity and declined to make an order for the discharge and acquittal of the Appellant, ought to have made a consequential order of retrial of the Appellant so as not to leave the faith of the Appellant hanging.

Since the decision in ABODUNDU V. QUEEN (1959) SCNLR162 the guidelines to be observed by an appellate court in deciding whether to make an order of retrial in criminal cases are already settled by this Court. In criminal cases before deciding to order a retrial, the Court must be satisfied:- (I) that there has been an error in Law (including the observance of the Law of evidence) or an irregularity in the procedure of such a character that on the other hand the Appellate Court is unable to say that there has been no miscarriage of justice; (2) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused, (3) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the second time, (4) 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 (5) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. All these factors must coexist before a case may be sent back for retrial.

See:- ANKWA V. THE STATE (1969) I ALL NLR133; AKINFE V. THE STATE (1988) 3 NWLR (PT. 85), DIKE V. THE STATE (1996) 5 NWLR (PT. 450) 553; GANIYU V. THE STATE (2013) 4-5 SC (PT. I) 71.

The existence or presence of factors (1) (2) and (4) among the factors set out in the guidelines above is easily ascertainable as those factors do not lend themselves to subjectivity. However, factors (3) and (5) are not so easily ascertainable and largely depend on the peculiar facts of each case at hand. This is because what constitutes special circumstances as would render it oppressive to put the Appellant on trial the second time and what would occasion a greater miscarriage of justice are subjective and may elicit mixed reactions or divergent perspectives from different individuals. So, a decision to order a retrial involves some exercise of discretion by an appellate Court which must be done with utmost caution, judicially and judiciously. I have read the case law in some detail on this point and I am not unaware that long detention of the accused person is no ground to refuse to order retrial. See *ONWE V. STATE (2017) LPELR-42589 (SC); JOSEPH V. STATE (2022) LPELR-59634(SC). *However, each case should be treated on its own peculiar facts. Here the circumstances that led the Appellant to fire the shot ought to be taken into account. The Appellant was in his line of duty as military personnel in the midnight. This taken together with long detention of the Appellant should constitute special circumstances as would render it oppressive to put the Appellant on trial the second time and would occasion a greater miscarriage of justice than to discharge the Appellant.

For the above reasons and detailed analysis in the lead judgement, I also affirm the judgement of the lower Court declaring the proceedings of the Court Martial nullity. I allow the appeal having found it meritorious. Consequently, I hereby make an order discharging the Appellant.
ABUBAKAR SADIQ UMAR

JUSTICE, SUPREME COURT

APPEARANCES;

R.O ATABI. SAN with him, A.G. HARUNA Esq.,

EMMANUEL OKWOU Esq; with him L.E. BAKO Esq. for the Appellant.

ISAAC UDOKA for the Respondent.