APPELLATE PRACTICE — Retrial — Factors for Ordering Retrial
Ratio Decidendi
Per Tabai, JSC, in Edibo v. State (2007) NLC-123-284-2003(SC) at pp. 10–11; Paras D–A:
"In order to justify an order of retrial, an appellate court must satisfy itself of the existence of a number of factors, depending on the peculiar facts and circumstances of each case. The factors include: (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that the appellate court is unable to say that there has been no miscarriage of justice; (b) that besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant; (c) that there are no special circumstances that would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences with which the appellant is convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and (e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it."
Explanation / Scope
An order for retrial is not automatic; it is a discretionary remedy that must be exercised judicially. The court must balance the interests of justice against the hardship to the accused of facing trial twice. The factors listed provide a structured approach: the error must be fundamental; there must be substantial evidence to support a conviction; the retrial must not be oppressive; the matter must be sufficiently serious; and the overall justice of the case must favour retrial. This ensures that retrial orders are made only in appropriate cases where the interests of justice clearly require it.