LEGAL PRINCIPLE: APPELLATE PRACTICE — Remittal of Case — Principles Governing Order for Retrial — Conditions for Making Order
PRINCIPLE STATEMENT
Before ordering a retrial, the court must be satisfied: (a) there has been an error in law or procedural irregularity not rendering the trial a nullity, yet the court cannot say no miscarriage of justice occurred; (b) the evidence discloses a substantial case against the appellant; (c) no special circumstances render a retrial oppressive; (d) the offence or consequences are not merely trivial; (e) refusing a retrial would occasion greater injustice than granting it. These conditions must co-exist.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Damina v. The State (1995) NLC-1191994(SC) at pp. 21–22; Paras. D–B.
"Before deciding to order a retrial, this court must be satisfied: (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such 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; (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; (e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it. These circumstances must co-exist before such an order is made."
EXPLANATION / SCOPE
Retrial is a serious remedy with specific conditions. All five conditions must co-exist. The court balances the interests of justice. The error must not have rendered the trial a nullity. The evidence must show a substantial case. The court considers oppression, triviality, and comparative injustice. The principle applies to criminal appeals. The court will not order a futile retrial. The rule protects the accused from double jeopardy. The court exercises discretion judicially.