LEGAL PRINCIPLE: CRIMINAL PROCEDURE — Retrial — When Retrial Will Not Be Ordered — Exercise in Futility
PRINCIPLE STATEMENT
A retrial will not be ordered if it would be an exercise in futility, for example, where the evidence of the sole witness is insufficient to sustain a conviction.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Tobby v. State (2001) NLC-412000(SC) at p. 8; Paras C–D.
"I would have considered an order of retrial but having regard to the evidence of the sole witness, I am afraid that such a retrial will be an exercise in futility."
EXPLANATION / SCOPE
A retrial is not ordered if it would be futile. Futility arises where the evidence available, even if properly adduced, would not sustain a conviction. The court considers the strength of the prosecution’s case. If the evidence is manifestly weak or the sole witness is unreliable, a retrial would waste judicial resources. The principle balances the interest of justice against efficiency. The accused is entitled to an acquittal rather than a futile retrial. The court examines whether the prosecution could realistically prove its case at a fresh trial. The decision is discretionary. The court will not order a retrial merely to give the prosecution a second chance.