JUDGEMENT DELIVERED BY CHIDIEBERE NWAOMA UWA, JSC – SC.889/2017

 I have read in draft the judgment of my learned brother, Hon. Justice Helen Moronkeji Ogunwumiju, JSC, just delivered. I agree with his reasoning and conclusion that this appeal has merit and should be allowed.

I shall add a few comments on the issue of whether or not the Appellant can validly place reliance on Section 193 of the Armed Forces Act which protects against double jeopardy and makes it unlawful for a person to be tried twice for an offence?

The said Section 193 of the Armed Forces Act Cap A20 LFN, 2004 provides as follows:

“Where the conviction of a person by a court-martial for an offence has been quashed under this part, he shall not be liable to be tried for that offence by a court-martial or by any other court.”

Clearly, the aforementioned provision is a derivative of Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that:

“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”

In IGBINEDION v. FRN(2014) LPELR-22766(CA)(Pp 43-43 Paras A-D) my learned brother has previously held on the doctrine of double jeopardy as follows:

“On the plea of double jeopardy, the plea presupposes that no man shall be vexed twice on the same facts and for the same offence. This implies that once a man has faced the Court of law for an offence and has been convicted or acquitted by the Court, such a man cannot be charged to Court on the same facts and offence on a later date. This is guaranteed by S.36(9) of the Constitution which provides as follows: “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 he tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court”

Similarly, his lordship Mary Ukaego Peter-Odili, JSC in PML (SECURITIES) CO. LTD v. FRN (2018) LPELR-47993(SC) (Pp 68-71 Paras F-C) held on the position of the law on the plea of double jeopardy/ autre fois acquit and convict, as follows:

“The Appellant had sought to rely on Section 36 (9) to talk of its being visited with double jeopardy in the trial initiated in Federal High Court, Benin. The Appellant needs to be reminded that for Section 36 (9), Constitution of the Federal Republic of Nigeria on double jeopardy to apply, the Appellant must establish that it has been either acquitted or convicted for the same offence for which it is presently called upon to answer. I place reliance on Kalu v. Nigerian Army (2010) 4 NWLR (PT. 1185) 433 at 451. Sections 181 and 182 of the Criminal Procedure Act provides as follows: ‘181 (1) Without prejudice to Section 171 of this Act, a person charged with an offence (in this section referred to as “the offence charged”) shall not be liable to be tried thereafter if it is shown – (a) that he has previously been convicted or acquitted of the same offence by a competent Court; or (b) that he has previously been convicted, or acquitted by a competent Court on a charge on which he might have been convicted of the offence charged; or (c) that has previously been convicted or acquitted by a competent Court of an offence other than the offence charged, being an offence of which, apart from this section, he might be convicted by virtue of being charged with the offence charged. (2) Nothing in Subsection (1) of this section shall prejudice the operation of any law giving power to any Court, on an appeal, to set aside a verdict or finding of any other Court and order a re-trial. 182. A person acquitted or convicted of any offence may afterwards be tried for any distinct offence for which a separate charge might have been made against him on the previous trial under the provisions of Section 158 of this Act.’ ‘According to Section 36 (9) of the 1999 Constitution, it is a conviction or acquittal by a Court of competent jurisdiction that can found a plea of autre fois convict or autre fois acquit.”

For a plea of double jeopardy/ autrefois acquit or autrefois convict to succeed, the factors laid out in the above cases must be proved to the satisfaction of the Court. In analyzing these pleas, there is the need to make it clear that there must have been a trial of the accused, that is, hearing and determination of the charge against him on the merits otherwise a subsequent trial as contemplated by Section 36 (9) of the Constitution of Nigeria, 1999 cannot be prevented. There should also have been the trial of the accused previously where he must have been convicted or acquitted. If there had been no trial previously, then the subsequent trial for the same offence is not barred. For the acquittal or the conviction to be an effective defense to the charge, it must have been handed down by a Court of competent jurisdiction. In other words, the court must have had complete jurisdiction to adjudicate on the trial. See CHIEF OF AIR STAFF & ORS v. IYEN (2005) LPELR-3167(SC), SUNDAY v. STATE (2017) LPELR-42140(CA), NWEKE v. FRN (2019) LPELR-46946(SC) and NIGERIAN ARMY v. AMINU-KANO (2010) LPELR-2013(SC).

  In the instant case, the lower Court declared the proceedings at the trial court ( General Court Martial) a nullity on the ground that the charge sheet upon which the Appellant was charged, was not properly signed by the Appellant’s commanding officer as required by law. But the lower Court further held that it cannot discharge and acquit the Appellant as the same will amount to validating the decision of the trial court which is a nullity.

It is my view, conceding to the argument of the Respondent’s learned counsel that the decision of the lower Court cannot be said to have been determined on the merit of the case. The lower Court merely nullified the proceedings of the trial court on a technicality without going into the substance of the case. Hence, Section 193 of the Armed Forces Act which aligns with Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which seeks to protect a person against double jeopardy is inapplicable here. The said sections presuppose a proper trial by a court of competent jurisdiction, which is not the case in this instance.

Notwithstanding the above, while I concede that the Appellant cannot validly place reliance on the plea of double jeopardy, I am the opinion that ordering a retrial, in this case, will melt out a grave miscarriage of justice to the Appellant. The Appellant has already spent eleven (11) years in custody. Ordering a retrial will merely prolong his days in custody. See OKOMALU v. AKINBODE & ORS (2006) LPELR-2470(SC), where his lordship Niki Tobi, JSC (Pp 23-24 Paras F-C) while determining the instances where an order of retrial will not be made, held thus:

 ” Appellate courts will not order retrial in the following instances: 1. A retrial will be ordered if it will satisfy the interest of justice. Therefore, where a retrial will result in injustice or a miscarriage of justice, an appellate court will not order a retrial. (2) A retrial cannot be ordered as a mere course, routine or fun; it must be based on valid procedural reason or reasons. (3) A retrial cannot be ordered to enable parties to have a second bite at the cherry to repair their case and come back in full force to present a fresh case. That will be a very smart one and Appellate courts will not encourage such smartness. (4) A retrial cannot be ordered to compensate a losing party. In other words, a retrial cannot be ordered when the plaintiff’s case has completely failed or failed in toto, and there is no substantial irregularity in the conduct or the case. (5) An appellate court will not order a retrial on the ground of irregularity or lapses in the conduct of the proceedings if the irregularity or lapses complained of can be corrected by the Appellate Court. In other words, a retrial will not be ordered in cases where Sections 16 and 22 of the Court of Appeal Act and the Supreme Court Act respectively could be invoked in the matter. (6) An appellate court will not order a retrial if there are no special circumstances warranting the retrial. A special circumstance will not be determined in vacuo but in the light of the fact of each case.”

(Underling mine for emphasis)

See also UMO v. UDONWA (2012) LPELR-7857(CA) and ONWE v. STATE (2017) LPELR-42589(SC).

For the above reason and others succinctly stated in the leading judgement, I also hold that this appeal has merit. The appeal is allowed.

CHIDIEBERE NWAOMA UWA

JUSTICE, SUPREME COURT.