CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The Appellant, a commercial motorcycle operator, was arrested on 2 March 2008. The Respondent’s case was that the Appellant was one of four armed robbers on two motorcycles who robbed PW3 (the victim) and his family of N10,000 and a Nokia handset. The Appellant was convicted and sentenced to death by the trial Court. On appeal, the Court of Appeal held that the prosecution did not prove the ingredients of the offences of conspiracy to commit armed robbery and armed robbery, allowed the appeal, quashed the conviction and sentence, but ordered a retrial before another Judge of the High Court of Lagos State. The Appellant further appealed to the Supreme Court.
Issues for Determination
ISSUE 1:
Whether the order of re-trial before a Judge of the High Court of Lagos State made by the Court of Appeal was properly made without first considering and determining the relief of discharge and acquittal of the Appellant.
Decision / Holding
The Supreme Court allowed the appeal. The Court held that the Court of Appeal, having found that the prosecution did not prove the ingredients of the offences, ought to have discharged and acquitted the Appellant rather than ordering a retrial. The order of retrial was set aside, and the Appellant was discharged and acquitted.
Ratio Decidendi / Principles
APPEAL — Unappealed Finding(s)/Decision(s) — Effect of Unappealed Finding(s)/Decision(s) of Court “The Court reviewed the evidence and arrived at the decision that the guilt of the Appellant was not proved. That decision remains unchallenged and is deemed acceptable to the affected party, the Respondent in the present appeal.” Per Jauro, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at p. 24; Paras D–A.
CRIMINAL LAW AND PROCEDURE — Discharge/Acquittal of an Accused Person — Whether the Relief of Discharge and Acquittal Must Be Mandatorily Granted/Considered in Criminal Trials “The Appellant’s grouse is that had the Court of Appeal after allowing the Appellant’s appeal, considered the entitlement or otherwise of the Appellant to the relief of discharge and acquittal, it would not have ordered a retrial. Judicially and usually, parties and Courts are bound by their pleadings as well as their reliefs. This is only a general principle. In criminal trials, the conviction and sentence or the reliefs sought by an accused person does not lie or depend on his relief since the law has fettered the reliefs the accused person can ask for. Even in civil cases where the law is more elastic and expansive, there are still exceptions. Thus, the relief of discharge and acquittal cannot apply as in civil cases. Each case must be considered on its merit and peculiarity. In fact, in criminal cases, statutory sentencing must be applied without considering the right of the accused person or his relief sought.” Per Aji, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 7–8; Paras D–A.
EVIDENCE LAW — Burden of Proof/Standard of Proof — Burden and Standard of Proof in Criminal Cases and Effect of Failure of the Prosecution to Discharge the Burden of Proof on It “Finally, it is trite that in criminal cases, the duty is on the Prosecution to lead evidence beyond reasonable doubt in proof of offences charged. Where the Prosecution fails to prove or establish the essential ingredients of a charge, same must be dismissed and the accused person acquitted and discharged.” Per Jauro, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 25–26; Paras D–A.
EVIDENCE LAW — Burden of Proof/Standard of Proof — Burden and Standard of Proof in Criminal Cases and How Same Is Discharged; Effect of Failure of the Prosecution to Discharge Same “The duty of the prosecution in any criminal trial is to establish the guilt of the accused person beyond reasonable doubt. In order to discharge this burden, it is required to establish every ingredient/essential element of the offence charged. This requirement is predicated on the guarantee of the accused person’s right to the presumption of innocence as provided for in Section 36(5) of the 1999 Constitution, as amended. … Where the evidence adduced is credible, a conviction may be founded on the evidence of even a single witness. On the other hand, where, upon a consideration of the totality of the evidence before it, one of the ingredients of the offence has not been proved or the Court entertains some doubt as to the guilt of the accused, that doubt must be resolved in his favour, as the prosecution would have failed to discharge the burden of proof. In such circumstance the accused person is entitled to an order of acquittal and discharge.” Per Kekere-Ekun, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 14–15; Paras D–A.
JUDGMENT AND ORDER — Order of Retrial/Trial De Novo — Circumstance Where an Order of Retrial Made in Respect of an Accused Person Will Be Regarded as Oppressive and Inappropriate “In the premises of the above position of the law, the express and conclusive findings by the Court below that the prosecution in the Appellant’s trial ‘did not prove the above three-fold ingredients, which it was required to prove, in order to secure a conviction for the said offence’, undoubtedly depicts and shows a failure by the prosecution to discharge the burden of proof imposed on it by the law, thereby leaving reasonable doubt in the case, to which the Appellant was entitled to benefit. … With respect, the order for re-trial of the Appellant after the finding and conclusion (decision) that the Respondent did not prove all the three-fold ingredients of the offence he was tried and convicted for by the trial Court amounted to providing another chance or second (2nd) bite at the cherry, to make up for its failure at the 1st chance, to attempt to discharge the burden of proof imposed on it by law. It would also be oppressive to put the Appellant on a second trial after the failure by the Respondent to prove the offence against him and after spending a period of fifteen (15) years in prison, standing trial for it.” Per Garba, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 19–21; Paras D–A.
JUDGMENT AND ORDER — Order of Retrial/Trial De Novo — Circumstance Where an Order of Retrial Made in Respect of an Accused Person Will Be Regarded as Oppressive and Inappropriate “Furthermore, it is abundantly clear that the circumstances of the case will render it oppressive to try the Appellant a second time. The Court below found that after a full-scale trial, the Respondent was unable to prove its case against the Appellant. Making him go through another trial is oppressive and will allow the Respondent an opportunity to fine-tune its case and get a second bite of the cherry. In my view, a retrial should not be used as a tool to assist the Prosecution that has failed to prove its case, in getting another bite of the apple.” Per Jauro, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 24–25; Paras D–A.
JUDGMENT AND ORDER — Order of Retrial/Trial De Novo — Principles That Guide the Court in Making an Order of Retrial “It is not automatic that a retrial will be ordered where a trial is declared to be a nullity. The order to be made will depend on the circumstance of each case. The discretion of the Court in deciding whether to order retrial must be exercised judicially and judiciously after a consideration of the entire facts of the case.” Per Jauro, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 22–23; Paras D–A.
JUDGMENT AND ORDER — Order of Retrial/Trial De Novo — Principles/Factors Guiding the Court in Making an Order of Retrial in a Criminal Matter “The primary considerations for and against ordering retrial may be the length of time the Appellant has been incarcerated, the difficulty or near impossibility of procuring vital witnesses if retrial was to be ordered … the factors which must coexist to be considered by the Court in determining whether to order a retrial where the original trial has been declared a nullity, postulated: (a) That there has been an error in law, including the observance of the law of evidence or irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable say that there has been no miscarriage of justice (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 for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal if the appellant are not merely trivial; and (e) That to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it.” Per Aji, JSC, in Eseu v. People of Lagos State (2024) NLC-123-738-2013(SC) at pp. 11–13; Paras D–A.
Orders of Court
Appeal allowed. The order for retrial of the Appellant made by the Court of Appeal was set aside. The Appellant was discharged and acquitted. He shall be released from the custody of the Correctional Centre where he is currently detained forthwith.
APPEARANCES
Counsel for the Appellant(s)
Nsikak John Inyang, Esq.
Counsel for the Respondent(s)
Oyinkansola Badejo-Okusanya, Esq. (with fiat of Attorney General of Lagos State)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY UWANI MUSA ABBA AJI, J.S.C. (DELIVERING THE LEADING JUDGMENT):)
On 2/3/2008 while at work, the Appellant, who was a commercial motorcycle operator, whose normal route was between Oko Afo Bus Stop and Okokomaiko in Lagos, saw a car speeding behind him and the driver of the car asked him to stop and so he did. He saw three men in mufti in the vehicle who said they were policeman and told him that the passenger he dropped robbed people and he told them he did not know anything about that. He showed them the N650.00 (Six Hundred and Fifty Naira) he made that day when they insisted to know whether he is a real commercial motorcycle operator. Not convinced with his explanations, the Appellant was later arrested on the said 2nd March, 2008, and taken to a police station in Badagry where he was asked to write a statement. When he refused to write a statement, he was tortured and beaten up. He was not allowed to get in touch with the owner of the motorcycle who is a Navy Officer. From the police station in Badagry, he was taken to the Federal SARS of Adeniji Adele Street, Lagos. The Appellant spent seven months from 15th March, 2008 to 7th October, 2008 in the
1
police cell before he was taken to the Magistrate Court.
The Respondent’s case however is based on the testimonies of PW1 and PW2, all police officers, who investigated and handled the Appellant’s case when he was arrested and handed over to them at the police station. PW3 (CPL Oginni Olalekan Samson), the victim of the armed robbery narrated that he, his wife and son were on their way to Seme border on 2/3/2008. His car developed a fault around Oko Afo at about 2pm and when he came down to check, he was surrounded by 4 boys on 2 motorcycles. He testified that the Appellant pointed a gun at his wife and asked them to surrender. He explained that the armed robbers made away with his wife’s handbag containing N10,000.00 and a Nokia handset valued at N12,000.00. He narrated that he chased after the robbers with the help of some policemen who were at a nearby checkpoint. That the Appellant was arrested and handed over to the police at the Enhanced Border Patrol, Seme.
The learned trial Judge convicted the Appellant and sentenced him to death by hanging on 30/9/2011. On appeal to the Court of Appeal, the Court of Appeal found and held that the
2
Respondent did not prove the ingredients of the offences of conspiracy to commit armed robbery and armed robbery and therefore allowed the Appellant’s appeal and ordered a re-trial of the Appellant. The Appellant has further appealed to this honourable Court.
After exchange of briefs, N. J. Nyang, learned Counsel to the Appellant prepared his amended brief of argument deemed filed on 23/11/2023 and nominated these issues for determination:
1. Whether the Court of Appeal was right when it ordered a retrial of the Appellant without first considering and determining the relief of discharge and acquittal of the Appellant as sought by the Appellant in his notice of appeal.
2. Whether the Court of Appeal was right when after it found and held that the Respondent did not prove the ingredients of the offences the Appellant was charged with, it refused to discharge and acquit the Appellant.
3. Whether from the facts and circumstances of this case, the Court of Appeal was right in law to have ordered a retrial of the Appellant.
Oyinkansola Badejo-Okusanya, Esq, the learned Counsel to the Respondent on the other hand filed a brief on
3
23/11/2023 and therein distilled 2 issues for determination as follows:
1. Whether from the facts and circumstances of this case and the findings of the Court of Appeal, the Court was right to have ordered a retrial of the Appellant.
2. Whether from the facts and circumstances of this case, the Court of Appeal judicially exercised its discretion in granting an order for trial of the Appellant before a Judge of the High Court of Lagos State.
ISSUE FOR DETERMINATION BY THE COURT:
The issue apposite and comprehensive to be considered in this appeal is:
Whether the order of re-trial before a Judge of the High Court of Lagos State made by the Court of Appeal was properly made without first considering and determining the relief of discharge and acquittal of the Appellant.
ARGUMENTS:
The learned Counsel to the Appellant submitted that the Court of Appeal after allowing the Appellant’s appeal, set aside the conviction and sentence of the Appellant but gave no consideration whatsoever to the relief of discharge and acquittal of the Appellant as sought by the Appellant, Consequently, that the Appellant was entitled to be
4
discharged and acquitted. That had the Court of Appeal after allowing the Appellant’s appeal, considered the entitlement or otherwise of the Appellant to the relief of discharge and acquittal, it would not have ordered a retrial. Thus, that the Court of Appeal was in error when it ordered a retrial of the Appellant without first considering and determining the relief of discharge and acquittal of the Appellant as sought by the Appellant in his notice of appeal. He relied on WESTAC (NIG) LTD V. SOKOTO STATE GOVERNMENT (2001) 4 NWLR PART 703 PAGE 304 AT PAGE 319 PARAS A-B. Further, that in so far as the Court of Appeal had comprehensively reviewed the evidence before it and found and held that the Respondent did not prove the three ingredients of the offence of armed robbery, the Appellant is entitled to be discharged and acquitted. He placed reliance on ALABI V. STATE (1993) 7 NWLR PART 307 PAGE 511 AT PAGES 522 – 423 PARAS H-H, JOHN V. STATE (2011) 18 NWLR PART 1278 PAGE 353 AT PAGE 382 PARAS E – G. Again, that the Court of Appeal did not consider nor apply the extant principles of law regulating retrials as enunciated in ABODUNDU V. QUEEN (1959) VOL. NSCC 56.
5
He referred also to IKHANE V. COMMISSIONER OF POLICE (1977) 11 NSCC 379, (1977) 6 SC 119. Therefore, that the order of retrial made by the Court of Appeal in the peculiar circumstances of this case was not made in the interest of justice as it gives the Respondent, who at the first trial, could not prove its case against the Appellant another unfair chance to cure evidential deficiencies in its case against the Appellant. He prayed that the appeal be allowed.
Contrarily, the Respondent contended that by the decisions in ABDULAHI MOHAMMED V STATE (2013) LPELR-19822 (SC), ADEOYE V. THE STATE (1999) 6 N.W.L.R. (PT. 605) 74 AT 88, GANIYU V THE STATE (2013) LPELR-20334 (SC), where a trial has been declared a nullity, the relevant and appropriate order to make in the circumstance, taking the evidence, the gravity of the offence and the interest of justice into consideration, is the one for a fresh trial. It was reacted that with the trial of the Appellant having been declared a nullity by the Court of Appeal, he asked when a retrial will be ordered where proceedings are declared a nullity! He further submitted that it is not possible to order a retrial without
6
an appellate Court first allowing an appeal and setting aside a conviction. Referring to UMARU v STATE (2009) 8 NWLR (Pt. 1142) 134, he argued that the need to prosecute Armed Robbery offenders in order to deter others is a relevant factor to be taken into consideration in deciding whether to order a retrial. He asked for the dismissal of this appeal.
RESOLUTION OF ISSUE:
The Appellant’s grouse is that had the Court of Appeal after allowing the Appellant’s appeal, considered the entitlement or otherwise of the Appellant to the relief of discharge and acquittal, it would not have ordered a retrial. Judicially and usually, parties and Courts are bound by their pleadings as well as their reliefs. This is only a general principle. In criminal trials, the conviction and sentence or the reliefs sought by an accused person does not lie or depend on his relief since the law has fettered the reliefs the accused person can ask for. Even in civil cases where the law is more elastic and expansive, there are still exceptions. Thus, the relief of discharge and acquittal cannot apply as in civil cases. Each case must be considered on its merit and peculiarity.
7
In fact, in criminal cases, statutory sentencing must be applied without considering the right of the accused person or his relief sought.
This appeal by the Appellant is against the judgment of the lower Court, which clearly at page 268 of the record held that, “Having resolved all the issues in favour of the appellant, we have no hesitation in allowing this appeal against his conviction and sentence. Appeal allowed. We hereby enter an order setting aside the judgment of Williams J. delivered on September 30, 2011. We, equally enter an order quashing the conviction and sentence on the appellant. We, finally, enter an order for retrial of the appellant for the said offence before another Judge of the High Court of Lagos State”. Evidently, the above decision and finding of the lower Court propelled the germ and rudiment of the Appellant’s appeal.
From the foregoing, it is noted that the lower Court considered all the issues presented by the Appellant and resolved them in his favour before allowing the appeal. He further quashed the conviction and sentence of the Appellant. However, the lower Court entered an order for retrial of the appellant
8
for the said offence before another Judge of the High Court of Lagos State. Certainly, the lower Court after comprehensively reviewing all the evidence before it as well as the arguments of counsel to both parties, found and held that the Respondent did not prove the ingredients of the offences of conspiracy to commit armed robbery and armed robbery. Clearly, in the first paragraph of page 268, the lower Court held that, “In all, the prosecution did not prove the above three-fold ingredients, which it was required to prove, in order to secure a conviction for the said offence… ”
The ingredients for armed robbery are that (a) There has been either a robbery or series of robberies, (b) The robbery or each of the robberies was an armed robbery, and (c) The accused was either the robber or one of those who took part in the robbery or series of robberies. See SANUSI V. STATE (2023) LPELR-59977(SC) (PP. 26 PARAS. B). Expectedly, where the evidence is not conclusive and concluded, it is out of place and inappropriate to declare that the ingredients of the offence have not been proved by the prosecution.
In the instant appeal, PW2, Sgt. Robert Cosmas, who
9
was the investigating Police Officer from the Federal Special Anti Robbery Squad, a key witness of the Respondent had absconded and abandoned the case even before he could be fully cross-examined by the Appellant’s Counsel. Despite several adjournments granted by the trial Court to the Respondent to enable PW2 attend Court and conclude his evidence, PW2 never showed up again in Court even after a bench warrant to compel his presence and give evidence till today. Although the Respondent assures that Sgt. Cosmas Roberts, now Inspector Cosmas Roberts, can be made available for the retrial, it must be borne in mind that this case started since 2008 and has lingered for about 16 years now. Yet, the fate of the Appellant has remained indeterminate and suspended. Even if he will serve the remaining terms in prison after conviction, that is still going to be very oppressive to him. Besides, if he turns out to be innocent, since his guilt is still not established, his presumption of innocence will have been greatly affected. It is trite that it is better to let go 99 criminals than to condemn one innocent person! Furthermore, the absence of PW2 to make the evidence of
10
the Respondent against the Appellant complete and established, as the case may be, was not the fault of the Appellant. Therefore, he cannot be made to suffer all these!
The primary considerations for and against ordering retrial may be the length of time the Appellant has been incarcerated, the difficulty or near impossibility of procuring vital witnesses if retrial was to be ordered in line with the case of ABODUNDU V. THE QUEEN 4 FSC 70; (1959) SCNLR 162. Per KEKERE-EKUN, JSC, in ELIJAH V. STATE (2019) LPELR-48946(SC) (PP. 14-15 PARAS. C-C), on the factors which must coexist to be considered by the Court in determining whether to order a retrial where the original trial has been declared a nullity, postulated:
(a) That there has been an error in law, including the observance of the law of evidence or irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable say that there has been no miscarriage of justice
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant.
(c)
11
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 for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal if the appellant are not merely trivial; and
(e) That to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it.
Per MUNTAKA-COOMASSIE, JSC in UMARU V. STATE (2009) LPELR-3360(SC) (PP. 20-21 PARAS. B) considered the scenario of retrial thus:
It is clear that there is breach of the constitutional provisions on the right of an accused to counsel in a criminal trial, notwithstanding that the appellant agreed to render his defence and to be cross-examined without his counsel being present in it. This breach of the provisions of the constitution is capable of rendering the whole trial a nullity. The learned justices of the Court of Appeal should have considered the length of time the appellant had been incarcerated, the difficulty or near impossibility of procuring vital witnesses if retrial was to be ordered… in line of the case
12
of Abodundu v. The Queen 4 FSC 70; (1959) SCNLR 162… The decision of the Court below cannot therefore stand. Same is allowed by me. The order of retrial is therefore set aside. The conviction and sentences meted out by the trial Court are null and void. I agree with my learned brother that the appellant shall not be retried again for the same offence. The appellant is therefore discharged of the charges preferred against him at the trial Court.”
I must opine that these factors tend to favour the Appellant and not the Respondent. If at the end of and the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the accused person, as to whether the offence was committed by him, the prosecution has not made out the case, the prisoner is entitled to an acquittal. See Per OGBUAGU, JSC IN UDOSEN V. STATE (2007) LPELR-3311(SC) (PP. 38 PARAS. B). Additionally, where there is doubt as to the commission of a crime by an accused person, the doubt must be resolved in favour of the accused. See Per ONNOGHEN, JSC in FRN V. ABUBAKAR (2019) LPELR-46533(SC) (PP. 22 PARAS. C). The doubt as to conspiracy to commit armed
13
robbery and armed robbery by the Appellant must not be used for his oppression and despondence but for his favour.
The sole issue is resolved in favour of the Appellant and the appeal succeeds. The order for retrial of the Appellant is set aside. He is discharged and acquitted.
Concurring Opinion(s)
— KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:
My learned brother, Uwani Musa Abba Aji, JSC availed me with a draft of the judgment just delivered. I agree with the reasoning and conclusion that this appeal should be allowed.
The duty of the prosecution in any criminal trial is to establish the guilt of the accused person beyond reasonable doubt. In order to discharge this burden, it is required to establish every ingredient/essential element of the offence charged. This requirement is predicated on the guarantee of the accused person’s right to the presumption of innocence as provided for in Section 36(5) of the 1999 Constitution, as amended. See: Ibrahim Vs The State (2015) 11 NWLR (Pt. 1469) 164: (2015) LPELR – 40833 (SC) @ 23 – 26 A – A: Posu & Anor vs The State (2011) LPELR – 1969(SC) @ 17 – 18 D – B: Nwaturuocha vs The State (2011) LPELR – 8119 (SC) @ 15 –
14
16 F- C.
Where the evidence adduced is credible, a conviction may be founded on the evidence of even a single witness. On the other hand where, upon a consideration of the totality of the evidence before it, one of the ingredients of the offence has not been proved or the Court entertains some doubt as to the guilt of the accused, that doubt must be resolved in his favour, as the prosecution would have failed to discharge the burden of proof. In such circumstance the accused person is entitled to an order of acquittal and discharge. See:Posu Vs The State (supra); Afolabi vs The State (2011) ALL FWLR (Pt. 538) 812 @ 818: Ugboji vs The State (2017) LPELR – 43427 (SC) @ 28 – 29 F – E: Atto Maba vs The State (2020) LPELR – 52017 (SC) @ 36 – 37 C – A.
In the instant case, beyond the lower Court’s finding that there was a breach of the Appellant’s right to fair hearing arising from the inconclusive cross-examination of PW2, which rendered the entire proceedings before the trial Court a nullity, it went further and reviewed the findings of the trial Court upon which the Appellant’s convictions for conspiracy and armed robbery were founded. The Court made
15
a definite finding that the prosecution failed to prove the ingredients of the offences with which the Appellant was charged. In the circumstances of this case, there was no basis for an order of retrial. It would have been oppressive on the Appellant.
I agree with my learned brother in the lead judgment that the Appellant is entitled to an order of acquittal and discharge in this case. I so order.
The appeal therefore succeeds. It is allowed by me. The judgment of the lower Court delivered on 25/6/2013 ordering a retrial before another Judge of the High Court of Lagos State is set aside. The appellant is acquitted and discharged and shall be released from the custody of the Correctional Centre where he is currently detained forthwith.
Appeal allowed.
— MOHAMMED LAWAL GARBA, J.S.C.:
My learned brother U. M. Abba Aji, JSC availed me of a draft of the lead judgment written in this appeal and I found the views expressed on the vital issues in the appeal, the same with mine.
I should just say that while the conditions which should exist and factors to be considered and taken into account before an order for re- trial in a criminal case
16
is made, are fairly settled by pronouncements from this Court, as demonstrated in the lead judgment, the authorities on the point are to the effect that each case would be considered in the light of its own peculiar circumstances. See Abodundu v. The Queen (1959) 4 FSC, 70, (1959) SCNLR, 162 (Cited by learned counsel), Kajubo v. The State (1988) 1 NWLR (pt. 73) 721 at 744, Erekanure v. State (1993) 5 NWLR (pt. 294) 385 at 394, Imam v. F.R.N. (2019) 8 NWLR (pt. 1674) 197 at 210.
In my view, one of the peculiar circumstances to be considered was/is the crucial finding and conclusion made and reached by the Court below, at page 268 of the Record of Appeal, that:-
“In all, the prosecution did not prove the above three-fold ingredients, which it was required to prove, in order to secure a conviction for the said offence.”
As it can easily be discerned from this precise and concise finding and conclusion by the Court below, it was a product of the appraisal of the facts, the assessment and evaluation of the entirety of the evidence adduced by the Respondent in the attempt or effort to discharge the burden of proof of the offence against the
17
Appellant beyond reasonable doubt, imposed on it by the law. See Sections 131, 132 and 135 (1) & (2) of the Evidence Act, 2011 (Sections 135, 136 and 138(1) and (2) of the 2004 Evidence Act in operation at the time of arraignment and trial), Jua v. State (2010) 4 NWLR (pt. 1184) 217(SC), Shehu v. State (2010) 8 NWLR (pt. 1195) 112 (SC), Chukwuma v. State (2011) 15 NWLR (pt. 1324) 405 (SC), Ikaria v. State (2013) All FWLR (pt. 671) 1463 (SC), State v. Gwangwan (2015) 13 NWLR (pt. 1477) 600 (SC).
The law also requires that for the prosecution to satisfactorily discharge the burden of proof beyond reasonable doubt, all the essential ingredients or elements constituting the offence an accused person is charged with, are to be proved by way of admissible, credible, cogent and sufficient evidence which eliminates reasonable doubt and show compellingly, that the accused person, and no other, committed the offence in question. Igabele v. State (2006) 2 FWLR (pt. 269) 1715 (SC), State v. Gwangwan (supra), Agugua v. State. (2017) 10 NWLR (pt. 1573) 254 (SC), Thomas v. State (2017) 9 NWLR (pt. 1570) 230 (SC). The law is that all the essential ingredients of an
18
offence must be proved together, satisfactorily, and that failure or inability to prove any of them is considered fatal for leaving a doubt in the case which should be resolved in favour of an accused person. In such a situation, failure to prove any one or some of the essential or vital ingredients of the offence constitutes failure to satisfactorily discharge the burden of proof beyond reasonable doubt which would entitle an accused person to an acquittal and discharge of the offence charged. See Simeon v. State (2018) 13 NWLR (pt. 1635) 128 (SC), Usman v. State (2018) 15 NWLR (pt. 1642) 320 (SC), Edun v. State (2019) 13 NWLR (pt. 1689) 326 (SC), Osetola v. State (2012) 17 NWLR (pt. 1329) 251 (SC), Adisa v. State (2015) 4 NWLR (pt. 1450) 475 (SC), Zubairu v. State (2015) 16 NWLR (pt. 1486) 504. (SC), Sani v. State (2015) 15 NWLR (pt. 1483) 522 (SC).
In the premises of the above position of the law, the express and conclusive findings by the Court below that the prosecution in the Appellant’s trial “did not prove the above three-fold ingredients, which it was required to prove, in order to secure a conviction for the said offence”, undoubtedly depicts
19
and shows a failure by the prosecution to discharge the burden of proof imposed on it by the law, thereby leaving reasonable doubt in the case, to which the Appellant, was entitled to benefit. The unequivocal finding and conclusion by the Court below was made after a consideration of the entire evidence adduced by the Respondent at the trial, along with the essential ingredients or elements constituting the offence of armed robbery the Appellant was tried for, on the merit. In the circumstances, after such final finding and conclusion arrived at by the Court below, the appropriate and proper consequential order that should naturally and normally flow and follow, in line with established principles of law enunciated in the above eases, (and battalions more), is one of acquittal and discharge of the Appellant on the ground of failure by the Respondent to prove the offence against him, beyond reasonable doubt. With respect, the order for re-trial of the Appellant after the finding and conclusion (decision) that the Respondent did not prove all the three-fold ingredients of the offence he was tried and convicted for by the trial Court amounted to providing another
20
chance or second (2nd) bite at the cherry, to make up for its failure at the 1st chance, to attempt to discharge the burden of proof imposed on it by law. It would also be oppressive to put the Appellant on a second trial after the failure by the Respondent to prove the offence against him and after spending a period of fifteen (15) years in prison, standing trial for it.
“In all”, I totally agree with the lead judgment that the conditions to justify or warrant an order for the re-trial of the Appellant were not present, met or satisfied in the circumstances of his case.
In the result, for the above and more detailed reasons set out in the lead judgment, I join in allowing the appeal in the terms thereof.
— IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.:
My learned brother, the Hon. Justice U.M. Abba-Aji, JSC has accorded me the opportunity of reading before now, the draft of the judgment just delivered.
I am in full concurrence with the reasoning and conclusion reached in the judgment, to the conclusive effect that the present appeal is grossly meritorious. Hence, having adopted the said reasoning and conclusion reached in the judgment as mine, I
21
too hereby allow the appeal and abide by the consequential order thereby acquitting and discharging the Appellant.
Appellant is acquitted and discharged.
— ADAMU JAURO, J.S.C.:
I have read a draft of the lead judgment just delivered by my learned brother, Uwani Musa Abba Aji, JSC. I agree with the reasoning and conclusions contained therein.
The lower Court made a finding that the Respondent failed to prove the offences charged against the Appellant, but nevertheless ordered a retrial because it also found that the trial before the trial Court was a nullity.
It is not automatic that a retrial will be ordered where a trial is declared to be a nullity. The order to be made will depend on the circumstance of each case. The discretion of the Court in deciding whether to order retrial must be exercised judicially and judiciously after a consideration of the entire facts of the case. In ONWE V. STATE (2017) LPELR – 42589 (SC) pp. 32 – 33 at paras. B -A, Kekere-Ekun, JSC elucidated thus:
“It must be stated that where a criminal trial has been declared a nullity, an order for retrial is not automatic. There are various factors that the Court
22
must take into consideration before making such an order. The following conditions must co-exist:
a) that leaving aside the error or irregularity in the proceeding, the evidence taken as a whole discloses a substantial case against the appellant;
b) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
c) 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;
d) that to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it;
e) the reason for declaring the trial a nullity and the overall interest of justice are also relevant.
See: Abondundu & Ors v. The Queen (1959) 1 NSCC 56 @ 60 lines 2-20; Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 @ 741-742 G-C; Amos Bode v. The State (2016) 12 NWLR (Pt. 1525) 154.”
In my view, the decision of the Court below to the effect that the offences for which the Appellant was charged and convicted by the trial Court, were not proved against
23
him by the Respondent is conclusive as to whether the evidence discloses a substantial case against the Appellant. The Court reviewed the evidence and arrived at the decision that the guilt of the Appellant was not proved. That decision remains unchallenged and is deemed acceptable to the affected party, the Respondent in the present appeal. See COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR-42081 (SC); ORIANZI V. AG RIVERS STATE & ORS (2017) LPELR-41737 (SC); LADOJA V. AJIMOBI & ORS (2016) LPELR – 40658 (SC).
Furthermore, it is abundantly clear that the circumstances of the case will render it oppressive to try the Appellant a second time. The Court below found that after a full-scale trial, the Respondent was unable to prove its case against the Appellant. Making him go through another trial is oppressive and will allow the Respondent an opportunity to fine-tune its case and get a second bite of the cherry. In my view, a retrial should not be used as a tool to assist the Prosecution that has failed to prove its case, in getting another bite of the apple. In addition, granting an order for retrial will occasion a greater
24
miscarriage of justice than not doing so. This is so because the decision of the Court below that the Respondent was unable to prove its case means that an order for retrial will be subjecting the Appellant to another harrowing experience of a second criminal trial after it had been unequivocally held that the Respondent fell short in proving his guilt.
Moreover, I completely agree with the argument of the learned counsel for the Appellant that it might be difficult to secure the attendance of PW2. There is no guarantee that the witness who refused to make himself available during the original trial, despite the issuance of a bench warrant against him, will be available about 14 years after. The difficulty in finding witnesses to testify is a factor that has been considered by this Court in some cases in deciding whether to order a retrial. See UMARU V. STATE (2009) LPELR – 3360 (SC); ADEOYE V. STATE (1999) LPELR-134 (SC).
Finally, it is trite that in criminal cases, the duty is on the Prosecution to lead evidence beyond reasonable doubt in proof of offences charged. Where the Prosecution fails to prove or establish the essential ingredients of a
25
charge, same must be dismissed and the accused person acquitted and discharged. See UDOSEN V. STATE (2007) LPELR – 3311 (SC). Thus, having held that the Respondent as Prosecution did not prove the elements of the offences charged, the only option open to the lower Court was to enter an order acquitting and discharging him.
For these and all the other reasons given in the lead judgment of Abba Aji, JSC, this appeal is also allowed by me. I abide by the orders made in the lead judgment.
26
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Abodundu v. The Queen (1959) 4 FSC 70; (1959) SCNLR 162 — cited at pp. 5, 11, 13, 17
Adeoye v. State (1999) 6 NWLR (Pt. 605) 74; (1999) LPELR-134 (SC) — cited at pp. 6, 25
Adisa v. State (2015) 4 NWLR (pt. 1450) 475 (SC) — cited at p. 19
Afolabi v. The State (2011) All FWLR (Pt. 538) 812 — cited at p. 15
Agugua v. State (2017) 10 NWLR (pt. 1573) 254 (SC) — cited at p. 18
Alabi v. State (1993) 7 NWLR (Pt. 307) 511 — cited at p. 5
Amos Bode v. The State (2016) 12 NWLR (Pt. 1525) 154 — cited at p. 23
Atto Maba v. The State (2020) LPELR-52017 (SC) — cited at p. 15
Chukwuma v. State (2011) 15 NWLR (pt. 1324) 405 (SC) — cited at p. 18
Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081 (SC) — cited at p. 24
Edun v. State (2019) 13 NWLR (pt. 1689) 326 (SC) — cited at p. 19
Elijah v. State (2019) LPELR-48946(SC) — cited at p. 11
Erekanure v. State (1993) 5 NWLR (pt. 294) 385 — cited at p. 17
FRN v. Abubakar (2019) LPELR-46533(SC) — cited at p. 13
Ganiyu v. The State (2013) LPELR-20334 (SC) — cited at p. 6
Ibrahim v. The State (2015) 11 NWLR (Pt. 1469) 164; (2015) LPELR-40833 (SC) — cited at p. 14
Igabele v. State (2006) 2 FWLR (pt. 269) 1715 (SC) — cited at p. 18
Ikaria v. State (2013) All FWLR (pt. 671) 1463 (SC) — cited at p. 18
Ikhane v. Commissioner of Police (1977) 11 NSCC 379; (1977) 6 SC 119 — cited at p. 6
Imam v. F.R.N. (2019) 8 NWLR (pt. 1674) 197 — cited at p. 17
John v. State (2011) 18 NWLR (Pt. 1278) 353 — cited at p. 5
Jua v. State (2010) 4 NWLR (pt. 1184) 217(SC) — cited at p. 18
Kajubo v. The State (1988) 1 NWLR (pt. 73) 721 — cited at pp. 17, 23
Ladoja v. Ajimobi & Ors (2016) LPELR-40658 (SC) — cited at p. 24
Mohammed Abdulahi v. State (2013) LPELR-19822 (SC) — cited at p. 6
Nwaturuocha v. The State (2011) LPELR-8119 (SC) — cited at p. 14
Onwe v. State (2017) LPELR-42589 (SC) — cited at p. 22
Orianzi v. AG Rivers State & Ors (2017) LPELR-41737 (SC) — cited at p. 24
Osetola v. State (2012) 17 NWLR (pt. 1329) 251 (SC) — cited at p. 19
Posu & Anor v. The State (2011) LPELR-1969(SC) — cited at p. 14
Sani v. State (2015) 15 NWLR (pt. 1483) 522 (SC) — cited at p. 19
Sanusi v. State (2023) LPELR-59977(SC) — cited at p. 9
Shehu v. State (2010) 8 NWLR (pt. 1195) 112 (SC) — cited at p. 18
Simeon v. State (2018) 13 NWLR (pt. 1635) 128 (SC) — cited at p. 19
State v. Gwangwan (2015) 13 NWLR (pt. 1477) 600 (SC) — cited at p. 18
Thomas v. State (2017) 9 NWLR (pt. 1570) 230 (SC) — cited at p. 18
Udosen v. State (2007) LPELR-3311(SC) — cited at pp. 13, 26
Ugboji v. The State (2017) LPELR-43427 (SC) — cited at p. 15
Umaru v. State (2009) 8 NWLR (Pt. 1142) 134; (2009) LPELR-3360(SC) — cited at pp. 6, 12, 25
Usman v. State (2018) 15 NWLR (pt. 1642) 320 (SC) — cited at p. 19
Westac (Nig) Ltd v. Sokoto State Government (2001) 4 NWLR (Pt. 703) 304 — cited at p. 5
Zubairu v. State (2015) 16 NWLR (pt. 1486) 504 (SC) — cited at p. 19
Referenced Statutes
1999 Constitution of the Federal Republic of Nigeria (as amended), Section 36(5) — cited at pp. 14
Evidence Act, 2004, Sections 135, 136, 138(1), 138(2) — cited at p. 18
Evidence Act, 2011, Sections 131, 132, 135(1), 135(2) — cited at p. 18
