LEGAL PRINCIPLE: APPELLATE PRACTICE — Remittal of Case — When Retrial Not Appropriate — Lapse of Time and Disappearance of Witnesses
PRINCIPLE STATEMENT
Where a trial commenced many years ago and witnesses have disappeared, greater injustice will be occasioned by ordering a retrial. Factors include seriousness of the offence, duration and expense of a new trial, ordeal for the prisoner, lapse of time, and its effect on evidence quality.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Damina v. The State (1995) NLC-1191994(SC) at pp. 22–23; Paras. D–A.
"Where the trial of the appellant commenced some twelve years ago and witnesses had begun to disappear as early as three years later, greater injustice will be occasioned if an order of retrial is made. Matters to be considered include the seriousness and prevalence of the offence, the possible duration and expense of a new trial, the ordeal to be undergone for a second time by the prisoner, the lapse of time since the commission of the offence and its effect on the quality of evidence, and the nature of the case of the prosecution against the prisoner as disclosed in the evidence of the first trial whether substantial or not."
EXPLANATION / SCOPE
Lapse of time and disappearance of witnesses may make a retrial oppressive. The court considers multiple factors. The principle applies to criminal appeals. The court will not order a futile retrial. The accused’s right to a fair trial includes the ability to defend. The prosecution’s case must still be substantial. The rule balances the interests of justice. The court may refuse a retrial even if the evidence discloses a case. The principle protects the accused from prejudice due to delay.