LEGAL PRINCIPLE: CRIMINAL PROCEDURE – Retrial – Order for Retrial – When Appropriate
PRINCIPLE STATEMENT
Guided by the above facts and the principle laid down by this court in Abodundu & 4 Ors v. Queen (1959) 4 FSC 70; (1959) SCNLR 162 and elaborated upon in Kajubo v. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another Judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of section 215 of Criminal Procedure Law Oyo State and section 33(6)(a) of the 1979 Constitution, which is a pure mistake of law.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Rufai v. State (2001) NLC-2832000(SC) at pp. 7–8; Paras D–A.
"Guided by the above facts and the principle laid down by this court in Abodundu & 4 Ors v. Queen (1959) 4 FSC 70; (1959) SCNLR 162 and elaborated upon in Kajubo v. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another Judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of section 215 of Criminal Procedure Law Oyo State and section 33(6)(a) of the 1979 Constitution, which is a pure mistake of law."
EXPLANATION / SCOPE
A retrial may be ordered where the original trial was voided due to non-compliance with mandatory provisions (e.g., defective arraignment) that constituted a pure mistake of law, not a lack of evidence. Retrial is appropriate where the evidence would support a conviction if properly admitted and the accused is not prejudiced. The court considers whether the prosecution has evidence to sustain a conviction, whether the offence is serious, and whether a retrial would be fair to the accused. The new trial should be before a different judge to avoid bias. Retrial is not automatic; the court exercises discretion based on the interests of justice.