FACTS
The Appellant and nine other persons, were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State, on 7th September, 1998, on a single count of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms Act, Cap. 398, Laws of the Federation, 1990. They all pleaded not guilty to the Charge, and trial proceeded with the Prosecution calling five witnesses and tendering 29 exhibits. Each of the accused persons, testified in his own defence. At the conclusion of trial, the tribunal in its judgement, which was delivered on 3rd June, 1999, found all the accused persons guilty as charged, and sentenced them to death. The court also made orders for the disposal or destruction of the exhibits, tendered in the case.
Prior to the delivery of the judgement, on 28th May, 1999, the Tribunal (Consequential Amendments, etc) Decree No. 62 was promulgated, which dissolved certain Judicial Tribunals, including the Robbery and Firearms Tribunal with effect from this date. The Decree vested the jurisdiction that had been held by the Robbery and Firearms Special Tribunal, in the Federal High Court or State High Court of the particular area where the offence was committed. The Decree also made special provisions for cases in which trial had been concluded, but judgement was yet to be delivered and for on-going part heard matters. Where the trial had been concluded but judgement was yet to be delivered, Section 2(6) of the Decree empowered the High Court vested with jurisdiction, to deliver the judgement; while by Section (3)(1) (b) of the Decree, part-heard criminal matters were to be tried de novo.
The Appellant and the 7th accused person, were dissatisfied with their conviction and sentence. They appealed to the Court of Appeal. At the appellate court, they questioned the validity of the judgement of the tribunal delivered on 3rd June, 1999, after it had been divested of its jurisdiction by the Tribunal (Consequential Amendments, etc) Decree No. 62. The Court of Appeal allowed the appeal, on the ground that the judgement of the tribunal delivered on 3rd June, 1999 after the commencement of the Decree, was invalid. The conviction and sentence of the Appellant and the 7th accused person were therefore, set aside. The Court of Appeal then made a consequential order of re-trial, by the High Court of Akwa Ibom State. Dissatisfied with the order of re-trial, the Appellant appealed to the Supreme Court.
Issue for Determination
The parties exchanged their briefs of argument, and each of them formulated a single issue for determination. The Supreme Court adopted the issue framed by the Respondent, in its determination of the appeal thus:
‘’Whether the Court of Appeal was right, when it ordered a re-trial of the Appellant for the same offence of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms Act, Cap. 398, Laws of the Federation of Nigeria, 1990’’.
Arguments
Counsel for the Appellant argued that, in view of the consequential order of the trial Judge directing that the exhibits should be destroyed or released to the witnesses, it would be impossible to re-assemble the said witnesses or retrieve the said exhibits for the purpose of trial. He submitted that, as at the time of filing the brief, 18 years had lapsed from the date of the judgement, and in light of the destroyed exhibits and passage of time, a retrial of the case would be of no beneficial value to the State. He submitted that, it would be oppressive to subject the Appellant to a second trial, where the prosecution has no chance of discharging the burden of proving its case beyond reasonable doubt. Relying on Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), counsel for the Appellant urged the court to set aside the order of re-trial.
In reaction, counsel for the Respondent submitted that, where a trial has been declared a nullity, the effect in law is that, the Appellant has not been tried and is therefore, not a convict and can be re-tried without violating Section 36(9) of the 1999 Constitution as amended. He submitted that, Section 36(9) of the Constitution which was relied upon by the Appellant, applies where the trial has been terminated either by a conviction or an acquittal. On the argument of the Appellant regarding the unavailability of the exhibits, Respondent submitted that, there is no evidence before the court that the order of the tribunal for the disposal of the exhibits had been carried out. He submitted further that, it is not the duty of the Apex Court, to determine whether the Prosecution would succeed in proving the allegation against the Appellant at the fresh trial. He referred to the decision of the Supreme Court in EREKANURE v THE STATE (1993) 5 NWLR (Pt. 294) 385, in support of his position.
Judgement
In its decision, the Apex Court held that, in construing Section 3(1) (b) of the Decree No. 62, it would be appropriate to consider it alongside the provision of Section 36(9) of the 1999 Constitution, (as amended). Section 3(1)(b) provides that where any part- heard matter is pending before any tribunal on the date of enactment of the Decree, the Judge shall, in a criminal case, try the matter de novo, pursuant to the Decree. The court also set out the provision of Section 36(9) of the 1999 Constitution (as amended), that a person who has been tried before any court or tribunal of competent jurisdiction and either convicted or acquitted shall not be tried for that offence again, save upon the order of a superior court.
Comparing the two provisions above, Their Lordships came to the conclusion that the words “save upon the order of a superior court” used in Section 36(9), implies that a superior court may make such an order, if the circumstances of the case warrants it.
Further, for the provision of Section 36(9) to apply, the court that carried out the trial and conviction or acquittal must be competent, and not as in the instant case where the trial tribunal had been dissolved and stripped of its competence and jurisdiction, on account of Section 3(1)(b) of the Decree No. 62 at the time the Appellant was convicted and sentenced.
Relying on the authority of ABODUNDU v THE QUEEN (1959) NSCC (VOL. 1) 56 and EREKANURE v THE STATE (1993) 5 NWLR (Pt. 294) 385–394 H-A, the Apex Court held that, an order of re-trial can be made in line with the legal principles guiding such order in criminal cases, where the original trial has been declared a nullity, in the following instances: where (i) there has been an error in law, including the observance of evidence or irregularity of 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 to say that there has been no miscarriage of justice; (ii) leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant; (iii) there are no special circumstances, as would render it oppressive to put that Appellant on trial a second time; (iv) the offence(s) 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; (v) to refuse an order of re-trial, would occasion a greater miscarriage of justice than to grant it; and (vi) it is the interest of justice, not only for the Appellant, but also for the victim and the society as a whole, to order a re-trial.
Given the conditions above, the order of re-trial made by the Court of Appeal was appropriate.
The court also held that, it was speculative to argue that it would be impossible to assemble the witnesses, or that the prosecution could not succeed in establishing its case without the witnesses because a conviction may be based on the evidence of a single witness, if the court finds him to be credible. Further, since the whole trial had been declared a nullity, which means that the Appellant was never tried, the relevant and appropriate order to make in the circumstance, taking into consideration the gravity of the offence and the interest of justice, is for a fresh trial of the Appellant.
Dissenting Opinion In his consideration and determination of the issue, the Honourable Justice Ejembi Eko reasoned that, by making the order of re-trial, the Court of Appeal had usurped the discretionary and exclusive powers of the Attorney-General of Akwa Ibom State to institute or take over criminal proceedings at any stage, as prescribed under Section 211 of the 1999 Constitution.
His Lordship opined further that, the order of re-trial of the Appellant after remaining in incarceration for 22 years, because Decree No. 62 perfunctorily directs trial, was a violation of the constitutional principle of separation of powers, and was oppressive to the Appellant.
Appeal Dismissed by a ratio of 4:1
Representation B.C. Uzuegbu Esq. for the Appellant.
T.A. Gazali Esq., Chief State Counsel, Federal Ministry of Justice with Adedayo Ogundele, Esq. (SSC); T.D. Dagbe (SSS); O.A. Oloruntogbe Esq., (SSS) and C.A. Okoronkwo, Esg. (SC) for the Respondent/Applicant.
