INSPECTOR JOHN ONWE v. THE STATE(2017)

INSPECTOR JOHN ONWE v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 30th day of June, 2017

SC.549/2013

RATIO

PRINCIPLES GOVERNING THE MAKING OF AN ORDER OF RETRIAL IN CRIMINAL CASES

The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the 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 the procedure of such a 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; (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused. (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the 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 and; (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. All these factors must co-exist before a case may be sent back for retrial. See:- ABODUNDU v. QUEEN (1959) SCNLR 162; ANKWA v. THE STATE (1969) 1 All NLR 133; AKINFE v. THE STATE (1988) 3 NWLR (Pt. 85), DIKE v. THE STATE (1996) 5 NWLR (Pt. 450) 553; GANIYU v. THE STATE (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial. PER SIDI DAUDA BAGE, J.S.C.

WHETHER A COURT HAS A DUTY TO CONSIDER ON ALL THE ISSUES RAISED BEFORE IT

The Court of Appeal from above, abandoned all other issues in the appeal, and considered only the issue No 2, on Arraignment, under Section 215 of the Criminal Procedure Law. Upon finding that Section 215 of the Criminal Procedure Law was not complied with by the trial Court, it quashed the trial, conviction and sentence and ordered fresh trial. The Court did not give consideration to the other issues in the appeal. It was contended that the evidence on which the Appellant was tried, was full of material contradictions. While it may be conceded that the issue of plea and arraignment under Section 215 of the Criminal Procedure Law is fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity, it does not call for the exercise of discretion as was erroneously done by the Court of Appeal. The Courts of Law should guide against the abandonment of their traditional and constitutional role of being an umpire between parties to a dispute. The Court must confine itself to the issues raised by the parties. Each party has a right to have dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. This Court, (The Supreme Court) stated what the duty and the role of a Court is. See:- MUFUTAU BAKARE v. THE STATE (1987) 3 S.C. 1 at 36. “The role of a Court is to try all the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case.” See also:- MOSES DAKUMA v. THE STATE (1936) 4 S.C. at 24; CHIEF DR. (MRS.) OLUFUNMILAYO RANSOME-KUTI & ORS v. ATTORNEY-GENERAL OF THE FEDERATION COMMISSIONER FOR JUSTICE & ORS (1985) 6 S.C. 246 at 291. Finally, therefore, the issue of Arraignment was not only issue in the appeal before the lower Court. The other issues in the appeal are left without consideration. PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

INSPECTOR JOHN ONWE Appellant(s)

AND

THE STATE Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Court of Appeal, Lagos Judicial Division in criminal appeal CA/L/380/2009 delivered on the 1st February, 2013 by the said Judgment, the Court ordered for a retrial before another judge nullifying the Judgment of the Lagos High Court which had convicted and sentenced the Appellant to death by hanging.

Dissatisfied with the judgment of the Court of Appeal, the Appellant appealed against the said sentence to this Court, vide a notice of Appeal dated and filed on 27th February, 2013.

SUMMARY OF THE FACTS
The facts of this case as may be gleaned from the evidence on record are that:-
“Appellant was a serving Police Inspector attached to the SCID Panti Yaba Lagos, under the Lagos State Police Command.
Prior to the appellant being charged to Court, one Ernest Ndudiri Onyckwere (deceased) was arrested on the 12th June, 2002, at Onitsha, Anambra State by one Sergeant Eniola Akinsulere of Alausa Police Station, Ikeja, also in Lagos State based on a complaint of armed robbery by one Gabriel Ezeze and

Azubuike Ezeze who were initially 7th and 8th accused persons charged with perverting the course of justice contrary to Section 126(1) of the Criminal Code Law Cap. 32 Volume 2 of Lagos State, 1994, when the case was initially taken to Court.
Before Ernest N. Onyekwere went to Onitsha where he was arrested, he alleged that he was beaten by armed robbers to a state of coma, looked very weak and was bleeding from the nose. This was alleged to have happened on 25th May, 2002. One Mrs. Bilikisu Ismail took him to Jim- Sam hospital al No. 22 Gaskiya Road, Ijora in Lagos. The father of Ernest N. Onyekwere heard of the armed robbery incident and the injuries sustained by the son and sent one of the son to go to Lagos and bring him to Onitsha for treatment.
This led to the discharge of Ernest N. Onyekwere and after the discharge from the hospital on 19th May, 2002, it was felt he need further treatment and was taken away to Onitsha for the treatment at Chinyere Hospital.
Sgt. Akinsulere Eniola who effected the arrest of Ernest N. Onyekwere at Onitsha said the deceased made a statement to him at his office at the Divisional Crime Branch, denying

the allegations against him. Accordingly he was instructed to transfer the deceased suspect to Panti C.I.D., Yaba which he did on the 17th June, 2002, by handing over the said Ndudiri Onyekwere who had bandages stained with blood on his head and several parts of his body and one Obiagwu to the IPO from Panti State CID Panti Yaba in the persons of Inspector Victor Ukah and Sgt. Abiodun Ogundele, who look them to their Department. The case was then assigned to team D9 Section of the SCID Panti Yaba, Lagos which was headed by the Appellant as the Team Leader. When Ernest N. Onyekwere was handed over to the Appellant’s team. Appellant asked what the problem was leading to the injuries and he was informed by the deceased that he was pushed down from a moving vehicle and the consequences were the injuries noticed on him for which he was receiving treatment in hospital from where he was arrested by police.
Appellant had six (6) police officers who worked under him amongst them were Inspector Victor Ukah and Sgt. Abiodun Ogundele. Investigations commenced and on 18th June, 2002, Inspector Victor Ukah and Abiodun Ogundele reported to the

Appellant that the deceased took ill during the night and Appellant directed Inspector Victor Ukah, Sgt. Abiodun, Sg1. Emmanuel Akpan, Cpl Ola Oladipupo and Cp1 Kenneth Obayegbo to take the deceased to the General Hospital, Ikeja for treatment, which they did.
About four (4) days after the deceased was taken from the office to the General Hospital for treatment, the police officers came back to the office to report to the Appellant that Ernest N. Onyekwere died while waiting to be attended to by the doctor at the hospital. Appellant in turn informed his superior officer, D C, O/C Homicide of the development and the O/C Homicide, the appellant and a police photographer went to the General Hospital Ikeja Mortuary to see the body, saw the body and photographed the body and returned to the office.
The police referred the matter to the Homicide Section and one Supol James Nwakama detailed to investigate the death of Ernest N. Onyekwere.
The autopsy which was scheduled for 21st June, 2002, was suddenly shifted to 24th June, 2002.
The body of Ernest N. Onyekwere which was deposited at the General Hospital Mortuary by the police was

removed from the said mortuary to General Hospital Lagos by the relations of Ernest Onyekwere without the consent/authority of the police. There were series of interference with the body of the deceased before an autopsy was eventually conducted on the body at the General Hospital Lagos. When the alleged autopsy was conducted, the same was not carried out in the presence and or involvement of the police.
No evidence on who identified the body as that of Ernest N. Onyekwere before the alleged autopsy was carried out and no result of the autopsy was produced and made available at the trial of the Appellant in Court.
Appellant and members of his team was arrested and asked to make statements which they did. The Police Preliminary Investigation Report, which was Exhibit L, exonerated Appellant and recommended the six officers who were in the team led by the Appellant for prosecution.
As it turned out, all the six police officers recommended for prosecution went aground and only the Appellant was charged to Court, tried and convicted and sentenced to death by hanging on the 6th December, 2007.
Appeal by the Appellant to the

Court of Appeal was allowed on the 1st February, 2013 and rather than grant the order of discharge and acquittal of the appellant, the Court of Appeal ordered a retrial of the appellant and without advancing any reasons and doing so in the Peculiar circumstances of the case were never taken into consideration by the Court. It is based on this that the Appellant has further appealed to this Court.”

In compliance with the rules of Court, briefs of argument were exchanged by the parties. The Appellants brief was settled by one Ocha P. Ulegede, Esq. and filed on 24/11/1015.

The Respondent’s brief of argument was however settled by E. I. Alakija (Mrs.) D.P.P., Office of the Hon. Attorney-General and Commissioner for Justice, Lagos State and filed on 25/1/2016.

On the 7th of April, 2017 when the appeal was heard, both Counsel representing the two parties, adopted and relied on their respective brief argument, while the Counsel for the Appellant urged that the appeal be allowed, a dismissal was sought for by the Respondent.

For the determination of this appeal, the sole issue raised on behalf of the appellant from the three grounds of

appeal is as follows:-
“Whether the order for retrial made by the Honorable Court of Appeal without giving any reason; nor considering the circumstances of the Appellants case was proper.”

The foregoing issue was adopted also by the Respondent. In arguing the appeal, learned Counsel for the Appellant’ submitted that, the lower Court did not provide a basis for ordering a retrial (fresh trial) and none can be deduced from its Judgment. The evidence adduced at the trial and other circumstances of the Appellant’s disposition and that of the prosecution witnesses, the contradictions, the roles played by the trial Judge and the prosecuting Counsel which were highlighted were not considered before the order of retrial was made. It is settled principle of law that before an order of retrial is made, it is necessary to consider the proceedings of the trial Court and to examine the evidence led as well as the entire circumstance of the case. See: EYOKOROMO & 1 OR v. THE STATE (1979) 6-9 S.C. (reprinted) 3 at 10-11, YESUFU ABODUNDU & ORS v. THE QUEEN (1959) 1 NSCC 56 at 60, EDIBO v. THE STATE (2007) All FWLR (Pt. 384) 192, SALISU

YAHAYA v. THE STATE (2002) 2 SC (Pt. 1) 1 at 13.

Learned Counsel for the Appellant further submitted that, all the facts stated must exist conjunctively before an order of retrial can be ordered.

These factors do not co-exist conjunctively in the instant appeal and therefore the order for retrial or fresh trial made is not proper and this Court is urged to allow this appeal and return a verdict of discharge and acquittal in favour of the Appellant.

The circumstances of the retrial will be prejudicial to the Appellant. See:- SAMAILA UMARU v. THE STATE (2009) MJSC 114 AT 125-126 Paragraphs F-E, OKEGBU v. THE STATE (1979) All NLR 200. Learned Counsel finally urged this Court to allow this appeal, considering the circumstances of this case, discharge and acquit the Appellant in the overall interest of justice.

In response to the above submission of the Appellant; Learned Counsel for the Respondent contended that, the Appellant had brought out the principles governing the order of retrial as settled by the Supreme Court, in the cases of YESUFU ABONDUNDU & ORS v. THE QUEEN (supra), EYOKOROMO & 1 OR v. THE STATE

(supra). However, the Court of Appeal, complied with the guiding principles for an order of a retrial as laid down in the cases cited above, as follows:-
“(a) Error in Law/irregularity in procedure. The learned Counsel submits that the proceedings at the trial Court was found to be faulted with non-compliance with Section 215 of the Criminal Procedure Law.
(b) Error in the observance of the Law of Evidence, the learned trial Judge admitted in admissible evidence and relied on same to convict Appellant.
(c) Evidence taken at the trial discloses a substantial case against the Appellant. The evidence indeed discloses substantial case against the Appellant.
(d) No circumstances rendering it oppressive to put the Appellant on trial a second time. The Appellant was sentenced to death. It is the maximum punishment. This case can be distinguished from the case of SAMAILA UMARU v. THE STATE (supra) where the Appellant was sentenced to a number of years and would have spent a substantial part of his sentence if a retrial was upheld.
(e) Sole defence witness. The Appellant testified as a sole defence witness hence there is no

question not being able to get his witness to attend Court to testify in his defence.
(f) Capital offence: The Court of Appeal followed and observed the principles guiding retrial after thoroughly examining the record of proceedings at the lower Court before ordering a retrial.”

Learned Counsel for the Respondent finally urged the Court to make an order of fresh trial as made by the Court of Appeal. Also to dismiss the Appeal.

The facts of this case is quite simple, and presents no complexity. The appeal resonates on the Order made by the Court of Appeal, for a retrial of the case of the Appellant, before another Honourable Judge, which was subject of that Appeal.

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 accused.
(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial
the 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 and;
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.
All these factors must co-exist before a case may be sent back for retrial. See:- ABODUNDU v. QUEEN (1959) SCNLR 162; ANKWA v. THE STATE (1969) 1 All NLR 133; AKINFE v. THE STATE (1988) 3 NWLR (Pt. 85), DIKE v. THE STATE (1996) 5 NWLR (Pt. 450) 553; GANIYU v. THE STATE (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial.

This is the state of the Law. The learned Counsel for the Appellant had earlier argued that the lower Court (Court of

Appeal) did not provide a basis for ordering a retrial and none can be deduced from its judgment. The evidence adduced at the trial and other circumstances of the Appellant’s disposition and that of the prosecution witnesses, the contradictions, the roles played by the trial judge and the prosecuting counsel which were highlighted were not considered before order of retrial is made. It would be necessary for this Court to consider the proceedings of the trial Court and to examine the evidence led as well the entire circumstance of the case. All the factors stated in the case must exist conjunctively before an order of retrial can be ordered. From the record of proceedings the following can be discerned namely:-
“(1) The Appellant was arrested in June, 2002 and he has been in detention since then, a total of about 11-12 – years
(2) The Police Preliminary investigation, Exhibit L, before the trial Court exonerated the appellant from prosecution and recommended the six Police Officers whom were in the appellants team and detailed by the appellant to investigate the deceased for prosecution.
(3) The unauthorized removal

and tampering with the corpse of Ernest N. Onyekwere when the same was removed from the Ikeja General Hospital to the Lagos Hospital without the consent, knowledge or approval of the police by the relatives of the deceased.
(4) Absence of any Police Officer and a person to identify the corpse of deceased as the body of Ernest N. Onyekwere to the Doctor who performed the autopsy.
(5) Absence of any Autopsy Report on the body purported to be that of Ernest N. Onyekwere.
(6) The fact that appellant denied the commission of the offence.
(7) The fact that appellant maintained uncontradicted that he never worked at the CID Ikeja where the offence was alleged to have taken place but at Panti SCID. Yaba
(8) The unchallenged version of the existing injuries which deceased sustained consequent on the alleged pushing from a moving vehicle in May 2002, less than a month before the alleged death of deceased.
(9) The time lag between the commission of the alleged offence and the time the retrial would take.
(10) The difficulties in procuring witnesses on the both sides to testify before the Court in a retrial.
(11) The fact that

some of the witnesses may never be traced, may have died and or may be unwilling to come forward to testify in the retrial.”

Those issues were before the Court of Appeal. The Court not being a final Court was enjoined to consider and resolve all the issues raised in the appeal. The issues above are not trivial.
“The Appellant at the Court of Appeal on page 891 of the records formulated six issues for determination as follows:-
(1) The learned trial Judge erred in law when he proceeded to give Judgment in favour of the prosecution without properly and adequately evaluating the evidence.
(2) The learned Trial Judge erred in law when he convicted and sentenced the Appellant to death when there was no proper arraignment.
(3) The learned trial Judge erred in law when he proceeded to admit the Statement purportedly made by one Sergeant Abiodon Ogundele Exhibit “P” for the purpose of impeaching the credibility of Appellant and relying on the same to convict Appellant and sentencing him to death.
(4) The learned Trial Judge erred in law when in admitting inadmissible evidence and relying on the same to convict the Appellant and the

same has occasioned miscarriage of justice.
(5) The learned Trial Judge was biased and displayed unusual interest in ensuring the conviction of the Appellant willy nilly.
(6) The Judgment of the Court is unreasonable, unwarranted and against the weight of evidence.”
“The Respondent formulated two issues thus:
(1) Whether having regard to the trial of the case, the Appellant was not properly arraigned before the lower Court.
(2) Haring regard to the facts and circumstances of this case, whether the lower Court was not perfectly right in holding that the Appellant is guilty of murdering the late Ernest Ndudiri Onyekwere.”

The Court of Appeal on page 892 of the records, after the examination of the issues above, stated as follows:-
“I have carefully considered the issues formulated for determination on behalf of Appellant and Respondent. I am of the view having carefully perused the Judgment of the lower Court and studied both the Appellant and Respondent’s Brief that the issues for determination in this Appeal can be condensed into one single issue:
Whether the lower Court conducted the Trial in strict

compliance with the mandatory requirement relating to the procedure in a Criminal trial which is a pre-requisite of a valid trial, complying with the provisions of Section 215 of the Criminal Procedure Law and Section 36 (6)(a) of the 1999 Constitution.”
“I shall determine this appeal on the lone issue as formulated above”.
ARRAIGNMENT
“The provision on valid arraignment contemplates that an accused person must properly be arraigned in Court at the Commencement of his trial. It also contemplates that whenever there is any amendment to an existing charge such amendment must first be read and explained to the accused and the accused must first plead thereto the same before trial on the amended charge should commence. It does not contemplate and or allow a situation, where, like in the instant case, the charge and the amended charge is read/explained to the accused and his plea taken only after the trial has ended and in fact final addresses of parties had been adopted and case reserved for Judgment and addresses re-adopted and case re-adjourned for Judgment which was never delivered.

In this instant case, the arraignment and trial being

null and void, the Judgment entered by the lower Court on 6th December, 2007 by Hon. Justice D. O. Oluwayemi is hereby set aside. The conviction and sentence are accordingly quashed.
It is hereby Ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment to another Judge of that Court for a fresh trial.”

done by the Court of Appeal. The Courts of Law should guide against the abandonment of their traditional and constitutional role of being an umpire between parties to a dispute. The Court must confine itself to the issues raised by the parties.
Each party has a right to have dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. This Court, (The Supreme Court) stated what the duty and the role of a Court is. See:- MUFUTAU BAKARE v. THE STATE (1987) 3 S.C. 1 at 36.
“The role of a Court is to try all the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case.
See also:- MOSES DAKUMA v. THE STATE (1936) 4 S.C. at 24; CHIEF DR. (MRS.) OLUFUNMILAYO RANSOME-KUTI & ORS v. ATTORNEY-GENERAL OF THE FEDERATION COMMISSIONER FOR JUSTICE & ORS (1985) 6 S.C. 246 at 291.
Finally, therefore, the issue of Arraignment was not only issue in the appeal before the lower Court. The other issues in the appeal are left without

consideration.

What is left for consideration in this case is that, the Court of Appeal did not consider this case, the record of proceeding as a whole to satisfy itself whether an order for a retrial was appropriate in the circumstance of this case. We had stated earlier on that, as a condition governing the order of retrial, all the factors listed by this Court must co-exist before a case may be sent back for retrial. The Judgment of the lower Court has not shown all, or any, of the factors exist to warrant the case of the Appellant to be sent back for retrial. The Appellant has been in custody since 2002. There is no justifiable reason therefore for the order for fresh trial of the Appellant. I resolve the sole issue in this appeal in favour of the Appellant. The appeal is meritorious and therefore allowed. The conviction and sentence of the Appellant by the trial Court for murder on charge No.ID/38C/2003 are hereby set aside. The Order of the Court of Appeal in Appeal No. CA/L/380/2009 remitting the case back to the High Court of Lagos State for fresh trial is hereby set aside. In its place an order discharging and acquitting the

Appellant on charge No. ID/38C/2003 is hereby entered in favour of the Appellant, and it shall be order of the trial Court and the Court of Appeal.

CLARA BATA OGUNBIYI, J.S.C.: The sole issue posed for the determination of this appeal is:
Whether the order for retrial made by the Honourable Court of Appeal without giving any reason, nor considering the circumstances of the appellant’s case was proper.

The crux of the issue at hand is the propriety of the retrial order made by the lower Court on the appellant. It is not in controversy also that the entire proceeding of the trial Court was void for non-compliance with the provision of Section 215 of the Criminal Procedure Act (C.P.A.).

It goes without any argument that the entire trial was a nullity as required by Section 215 C.P.A. and same was not disputed to by any of the parties.

In other words, the absence of proper plea having been taken from the appellant had vitiated the entire trial and proceedings as was rightly stated by the lower Court, which accordingly ordered for a fresh trial of the appellant.

It is pertinent to restate

emphatically that certain conditions are very mandatory before an appellate Court can be in a position to make an order for either a retrial or fresh trial. Whether or not the conditions requisite are met in the case at hand, recourse must be had to the judgment of the lower Court at pages 910 – 911 wherein the Court said:-
“The provision on valid arraignment contemplates that an accused person must properly be arraigned in Court at the commencement of his trial. It also contemplates that whenever there is any amendment to an existing charge such amendment must first be read and explained to the accused and the accused must first plead thereto the same before the trial on the amended charge should commence. It does not contemplate and or allow a situation. where, like in the instant case the charge and the amended charge is read/explained to the accused and his plea taken only after the trial has ended and in fact final addresses of parties had been readopted and case reserved for judgment and addresses re-adopted and case re adjourned for Judgment which was never delivered. In this instant case, the arraignment and trial being a null and void, the

judgment entered by the lower Court on December, 2007 by Hon. Justice D. O. Oluwayemi is hereby set aside. The conviction and sentence are accordingly quashed. It is hereby ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment to another judge of the Court for a fresh trial.”

The learned counsel for the appellant, I must say rightly in my view, succinctly summarized the entire gamut of the contents of the lower Court’s judgment (supra) when he said:-
“…the lower Court did not provide a basis for ordering a retrial (fresh trial) and non can be deduced from its Judgment. The evidence adduced at the trial and other circumstances of the appellant’s disposition and that of prosecution witnesses, the contradictions, the roles played by the trial judge and the prosecuting counsel which highlighted were not considered before the order of retrial (fresh trial) was made. It is settled principle of law that before an order of retrial was made, it is necessary to consider the proceedings of the trial Court and examine the evidence led as well as the entire circumstances of the

case.”

This Court, in the case of Eyorokoromo & 1 Or. v. The State (1979) 6 9 SC (reprint) 3 at 10 11 did spell out the power of the lower Court relating a retrial in criminal cases and said:-
“Now the power of the Court of Appeal to order a retrial in criminal cases is conferred by Section 20(2) of the Decree in identical words with Section 26(2) of the Supreme Court Act. It follows therefore that the principles in Yesufu Abodundu 4 Ors v. The Queen (1959) 1 NSCC 56 at 60 which are guiding principles under which this Court will order a retrial, are applicable in the Court of Appeal in exercise of their discretion under Section 20(2) of the Decree. To exercise that discretion judicially call for the examination by the Court of Appeal of the whole record of proceedings of the trial Court to ascertain whether or not the evidence and the circumstances of the case came within those principles. On the face of the records, it has not been shown that the Court of Appeal examined the evidence before ordering a retrial and did not give its reasons for a retrial.”
In the case under consideration, I will not hesitate to say that

having concluded that the appellant’s arraignment was faulty, the lower Court rightly set aside the judgment of the trial Court and quashed the conviction and sentence of the appellant thereof. However, the Court without any further consideration proceeded and ordered for a fresh trial. In other words, the lower Court before it could be in a position to order a retrial, it must comply with the guiding principles as laid down by this Court in the case of Yesufu Abodundu 4 Ors. v. The Queen (1956) NSCC Vol. I page 56 wherein it was held that the principles must also all co-exist conjunctively.
From the judgment of the lower Court reproduced supra, same did not state any reason indicating that there was proper examination of the evidence and circumstances of the case before the order for retrial was made.
In the same authority of Yesufu Abodundu & Ors. v. The Queen (supra) at page 60 of the report for instance, this Court said:-
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied (a) there has been an error in law (including the observance of the law of evidence) or on irregularity

in procedure of such a character that on the one hand that the retrial 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 to Section 11(1) of the ordinance; (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 a 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 or the appellant, are not merely trivial and (e) that to refuse to order for retrial would occasion a greater miscarriage of Justice than to grant it.”
See also the decisions in the cases of Edibo v. The State (2007) All FWLR (Pt. 384) 192 and Salisu Yahaya v. The State (2002) 2 SC (Pt. 1) 1 at 13.
From all indications and taking into consideration the entire case as it is disclosed on the record of appeal, the proceedings in this case is not clear cut and straight forward to warrant the

making of an order for fresh trial. This is especially when regard is had to the identity of the victim as relating his name, the person who identified the corpse to the doctor for post mortem purpose especially in the absence of any police office. Also in addition is the fact that the appellant had been at his trial and appeal for a period of at least 11 years and having been in detention; there is also the problem of availability of witnesses in the case for subsequent trial. The record had also revealed that there was an unauthorized removal and tampering with the corpse of Ernest N. Onyekwere when same was removed from the Ikeja General Hospital by the relations of the deceased to the Lagos Hospital without the consent, knowledge or approval of the police.
As rightly submitted by the learned counsel for the appellant therefore, when the entire circumstance of the case is taken together, the retrial order made will certainly be prejudicial to the appellant. This is not withstanding the fact that the charge against the appellant is grave and the evidence is strong. See the case of Samaila Umaru v. The State (2009) MJSC 114 at 125 – 126 where this Court

held and said:-
There is no doubt that the charge against the appellant and his co-accused were grave and serious and the evidence rather strong. It is true that the learned trial Judge misapplied the fundamental principle of the Constitutional law where the trial proceeded in the absence of the appellant’s counsel and I agree that the approach of the learned trial Judge had rendered the trial a nullity. In my view considering all the circumstances of this case and in the overall interest of Justice including the fact that the appellant has been in prison custody since August 2001 together with the fact that the witnesses who testified may not be found to testify, a retrial will be oppressive on the appellant. The justice of this case demands that the appellant should not go through the ordeal of a retrial again especially when he had served a substantial part of his sentences. In the case Ereko Nure v. The State (1993) 3 NWLR (Pt. 294) 25, Olatawura JSC observed at page 394:
‘I am of the firm view that retrial”, trial”, “trial denovo” or “new trial” can no longer be automatic once the trial is a nullity. Each case must be considered in

the peculiar circumstances which forms the background!’
As mentioned above, the right of the appellant has to be protected from prejudice, in other words, an order for retrial cannot be made in a situation where the appellant is exposed to prejudice. In the instant case, since the appellant has spent a substantial part of his sentence imposed by the trial Court, it will be oppressive for the appellant to be tried for the send time.”
The same principle was applied by this Court in the earlier case of Okegbu v. State (1979) All NLR 200.
In the appeal before us and having regard to the extenuating circumstances of the appellants denial of the commission of the offence coupled with the Police Preliminary Investigation report which exonerated the appellant from prosecution, as well as the contradictory evidence of the Prosecution witnesses who testified before the trial Court, the evidence against the appellant cannot be said to be completely overwhelming.

With the few words of mine and especially relying on the comprehensive reasoning and conclusion arrived at by my learned brother Bage. JSC in his lead judgment which I adopt

as mine, I also make an order acquitting and discharging the appellant. The order of a fresh trial made against the appellant by the lower Court is hereby set aside by me.

The appellant is acquitted and discharged forthwith.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant in this appeal was a serving Police Inspector attached to the State C.I.D. at Panti, Yaba, Lagos under the Lagos State Police Command.

He was initially arraigned along with seven others on two counts of murder and perverting the course of justice contrary to Sections 319(1) and 126(1) respectively of the Criminal Code Law of Lagos State, 2003. He was only concerned with the charge for murder. He was alleged to have caused the death (while in Police custody) of one Ndudiri Onyekwere, a suspect being investigated in a case of armed robbery.

After trial commenced and PW1 had testified, it was realised that his plea had not been taken. At that stage, his plea was taken and he pleaded not guilty to the count of murder. PW1 was re-sworn and continued with his testimony. Thereafter PW2 and PW3 testified.

After the testimony of PW2 and PW3, the prosecution applied to withdraw the charge. It was withdrawn without objection from the defence on 13/2/2006. On 27/2/2006, the Court was informed that there was an amended charge before it. However the appellant’s plea was not taken on the amended charge. The amended charge contained a single count of murder against the appellant alone. The appellant raised an objection to the amended charge but later withdrew it. After the withdrawal of the objection, the trial continued with the evidence of PW4. The prosecution closed its case. The defence opened and closed its case after which the case was adjourned to 16/2/2007 for the adoption of written addresses. After several adjournments during which learned counsel on 24/5/2007 re-adopted their addresses, the Court on 22/10/2007 observed that “the new charge was not read to the accused person as required by the Criminal Procedure Law.” His plea was taken on that day. Counsel re-adopted their written addresses and the matter was adjourned to 31/2/2007 for judgment. The judgment was eventually delivered on 6/12/2007. The appellant was found guilty as charged and

sentenced to death by hanging.

On appeal to the Court of Appeal, Lagos Division (the lower Court), it was successfully argued on behalf of the appellant that the failure to comply with Section 215 of the Criminal Procedure Law amounted to a breach of the appellant’s fundamental rights as guaranteed by Section 36(6)(a) of the 1999 Constitution and rendered the entire proceedings a nullity. In a considered judgment delivered on 1st February, 2013, the lower Court quashed the appellants conviction and sentence and ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment to another judge for a fresh trial.

The sole issue for determination in this appeal, as formulated by learned counsel for the appellant is:
“Whether the order for retrial made by the Honourable Court of Appeal without giving any reason nor considering the circumstances of the appellants case was proper.

There is no cross appeal against the finding of the lower Court that the trial was a nullity for non-compliance with Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the 1999 Constitution Thus, the only

consideration in this appeal is whether the order for retrial was proper in the circumstances of this case.

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 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.
It was held by this Court in Kajubo v. The State (supra) at 744C that the important consideration in deciding whether or not to order a retrial is whether the evidence as a whole discloses a substantial case against the appellant and whether there are or are not such special circumstances as would render it oppressive to put the appellant on trial a second time or to order him to be retried or order fresh hearing. Each case will be determined on its own peculiar facts. See: Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 @ 394-395 H-A.
It is pertinent to note and I agree with learned counsel for the appellant that in making the decision to order a retrial in this case, the lower Court did not give any consideration whatsoever to the guiding factors enumerated above. The Court seemed to be of the view that once the trial at the trial Court was declared a nullity, the only option open to it was to order a retrial. From the authorities earlier referred to such a position with respect is erroneous.

Certain aspects of the evidence before the

trial court are significant in determining whether the order for a retrial was proper in this case:
– The fact that the appellant denied committing the offence and was in fact initially exonerated of the crime in the Police Preliminary Investigation report (Exhibit L) and a recommendation made for the prosecution of the six police officers in his team who were detailed by the appellant to investigate the deceased and who eventually absconded.

– Undisputed evidence that the corpse of Ernest N. Onyekwere was unilaterally removed from Ikeja General Hospital to General Hospital, Lagos and tampered with by relations of the deceased without the consent, knowledge or approval of the Police.
– Inconsistency in the evidence of the prosecution witnesses as to who identified the body of the deceased as that of Ernest N. Onyekwere to the doctor who performed the autopsy.

It was in evidence that Dr. Elesha, who testified as PW4 conducted the autopsy on the deceased as a representative of the family of the deceased. While PW3 testified that it was he who identified the body of the deceased to the doctor because there was no policeman present, PW4

stated in his evidence in chief that the body was identified by the Police. Under cross-examination however, he stated that there was no policeman present at the time the autopsy was performed. Also that the Government Pathologist was not present.

The inconsistency in the evidence of these witnesses is material because the identity of the corpse is an important factor in determining one of the ingredients of the offence of murder i.e. that the deceased died. The appellant was charged with killing one Ndudiri Onyekwere. He was however convicted of killing one Earnest NDUBISI ONYEKWERE (see p.634 of the record).

There was also an alternative version of what caused the death of the deceased which was not discredited – that the deceased was pushed out of a moving vehicle about a month before his arrest and was receiving treatment for his injuries at Onitsha when he was arrested.

PW1, a friend of the deceased testified that he met the appellant at SARS Ikeja and that it was there that the appellant and one Biodun (one of the police officers who absconded) beat the deceased, tied him with rope, hung him and hit him with the butt of a gun in

order to make him confess to committing the offence for which he was arrested. He stated that after some time he could no longer hear the cries of the deceased. That it was after this incident that they were transferred to Panti and he later learnt that he had died. The evidence of the appellant was that he never worked at Ikeja where the offence allegedly took place but at C.I.D. Panti, Yaba. The prosecution did not lead any evidence to tie the appellant to SARS Ikeja at any point in time.

The effect of these observations is that it cannot be said that the evidence, taken as a whole, disclosed a substantial case against the appellant. Furthermore, the offence was alleged to have been committed in 2002 and the appellant has been in custody since then – a period of 15 years to date. Given the inconsistencies in the evidence of the prosecution and the length of time spent in custody by the appellant, I am of the considered view that in the circumstances of this case, it would be oppressive to put the appellant on trial a second time.

As stated earlier, each case will be decided on its own peculiar facts. If the prosecution had made out a

substantial case against the appellant, having regard to the gravity of the offence with which he was charged, a retrial or fresh trial would have been proper notwithstanding the length of time he has spent in custody. I am convinced that in this case, the order of retrial did not meet the justice of the case. See; Mohammed v. The State (2013) 5 NWLR (Pt. 1347) 315 @ 328 B-F: Ogboh v. F.R.N. (2002) 10 NWLR (Pt. 774) 21; Amos Bode v. The State (supra).

It is for these reasons that I agree with my learned brother, SIDI DAUDA BAGE, JSC that there is merit in this appeal. I allow it.

The judgment of the Court of Appeal delivered on 1st February, 2003 remitting the case to the Honourable Chief Judge of Lagos State for retrial is hereby set aside. An order of discharge and acquittal is hereby entered in favour of the appellant in respect of Charge No. ID/38C/2003.

Appeal allowed.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, SIDI DAUDA BAGE, JSC, I agree that the appeal be and is hereby allowed for the reasons therein contained and others

herein below.

The appellant was at the trial Court accused of causing the death of one NDUBIRU ONYEKWERE. It was a murder charge, under Section 319(1) of the Criminal Code Law of Lagos State. He was also charged for perverting the course of justice contrary to Section 126(1) of the same Criminal Code Law. The trial was at the Criminal Division of Lagos State High Court of Justice.

The trial had commenced and the PW.1 had substantially testified before it was realized that the plea of the accused person had not been taken. The pleas were then taken by the appellant, as the accused person, in respect of the two charges. He pleaded not guilty to each charge. He was represented by a counsel. The defence did not protest. They seemed to have acquiesced.

Thereafter, after the evidence of four (4) out of the six (6) witnesses listed by the prosecution to testify, the prosecuting counsel withdrew the original charge sheet contending that there were some inconsistencies and that the charge was incompetent. He did not give particulars of the alleged inconsistencies. The evidence of PW.3 and PW.4, he thinks, must have tremendously jolted

him.

On 21st February, 2006, the prosecutor filed the amended charge. He made no effort to have the amended charge read and explained to the accused person. No plea was taken on the amended charge. The trial proceeded and two more prosecution witnesses testified thereafter. The prosecution closed their case on 12th September, 2006, and the defence opened their case on 21st September, 2006 and closed the defence on 10th October, 2006.

The prosecution and defence filed and exchanged written addresses. The written addresses were finally adopted on 12th December, 2006 after a couple of adjournments. The case was then adjourned to 25th January, 2007 for Judgment. Before then the prosecution brought an application “to withdraw the Amended charge dated 21st February, 2006”. Mr. Sanni, the prosecutor, on 12th February, 2007, informed the trial Court: “we shall be relying on the initial charge filed on the 22nd of September, 2003”. I ask: which initial charge It had since been withdrawn!! Mr. Arthur Asha, who that day appeared for the accused person did not oppose the application. The prosecutor was clearly up to some games or

tricks.

The only charge, as it is, the accused pleaded not guilty to was the original charge read and explained to the accused person after the evidence of the PW.1. And as I earlier stated the accused who was throughout represented by counsel had acquiesced in all these procedural mixed-ups. It appears to me on authority ARIOR 1 v. ELEMO (1983) 1 SCNLR 1; (1983) 1 SC 13 that the accused could waive this procedural right of fair hearing that enured to his benefit. This is a procedural irregularity that can be waived expressly or by conduct. In this case, the accused person and his counsel appeared to have expressly waived the non-compliance or strict compliance with the procedure of taking plea to the charge he was defending.

Between 12th February, 2007 and 6th December, 2007 when the judgment of the trial Court was delivered, there were not less than 5 adjournments which were largely caused by the prosecution on 12th February, 2007, Mr. Sanni, the learned Prosecutor, withdrew the Amended Charge. As a result, the matter was “adjourned to 16th February, 2007 for the adoption of Written Addresses by Counsel”. There is no minute of any proceedings

on 16th February, 2007.

On 22nd February, 2007 “the Written Addresses of Counsel to both the Prosecutor and the Accused Person (were) adopted” and the case was adjourned to 19th April, 2007 for Judgment. It appears the trial Court did not sit on 19th April, 2007. On 24th May, 2007, the minutes of the proceeding show that both the prosecution and defence Counsel re-adopted their respective written addresses, and the matter was further adjourned to 1st June, 2007 for judgment by the learned trial Judge. There is no record that the Court sat on 1st June, 2007.

The trial Court sat on 22nd October, 2007, and from the blues the trial Court observed at page 602 of the Record:
“From the record, the Court found out that the new charge was not read to the Accused person as required by the Criminal Procedure Law.
PLEA
Charge read and explained to the Accused person in English Language to the satisfaction of the Court. Accused person pleaded Not Guilty to the one count charge on Information. Accused 1st Count. Not Guilty.
Case adjourned to 24/10/2007 for Adoption of Written Addresses by Counsel to both the Prosecution and the Accused

person.”

The Written Addresses were re-adopted on 24th October, 2007 and the “case adjourned to 3rd December, 2007 for Judgment”. The Judgment was not delivered on 3rd December, 2007, but on 6th December, 2007.
Section 36(4) of the 1999 Constitution provides –
“(4) whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal.”

Neither this provision nor the provision of Section 294(1) of the same Constitution which enjoins the learned trial Judge to deliver his Judgment within 90 days after the conclusion of evidence and final addresses seemed to have any meaning at the trial Court. For emphasis, I hereby reproduce Section 294(1) of the Constitution.
That is –
“294(1) Every Court established under this Constitution shall deliver its decision in writing not less than ninety after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

It seems to me that

the prosecutor was playing tricks on the Court with the charge. At pages 21-22, 82-83, 334-335 and 478 of the Record one can hardly find any difference between the old and new charges, particularly as regards the allegation of murder. At page 478, the charge of Murder, which is identical with the charge at pages 21-22, reads:
“INSPECTOR JOHN ONWE (m) is charged with the following offence:
STATEMENT OF OFFENCE – 1ST COUNT
Murder contrary to Section 319(1) of the Criminal Code Law Cap 32, vol.2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Insp. John Onwe (m), with others now at large, on or about the 18th June, 2002, in the Ikeja Judicial Division at State Criminal Investigation Department Annex (Formerly Special Anti Robbery) Squad) Ikeja murdered Ndudiri Onyekwere.”

The only differences between the charges at pages 21-22 and 478 are: (1), the other accused persons, 2nd-8th accused persons were no longer on the charge sheet at page 478, and (2) the 2nd charge of perverting the course of justice at pages 21-22 had been dropped. It is no longer on the charge at page 478. The 1st count, charging the accused/appellant for the

murder of one NDUDIRI ONYEKWERE remains extant.

On the merits, the defence vigorously contested the charge. They submitted that the Police Preliminary Report, Exhibit L, revealed the existence of the Autopsy Report signed by one Dr. Animashaun who according to the PW3, Nnenna Luke, never conducted the autopsy. The same PW.3 claimed to be at the autopsy and that he, it was who identified the body of the deceased, Ndudiri Onyekwere to the pathologist, Prof. Elesha, the PW.4. They further submitted that Prof. Elesha, the PW.4 had been materially contradicted in several respects, namely: when he testified that a policeman identified the corpse of Ndubuisi Onyekwere when the autopsy was conducted on the body of Ndubuisi Onyekwere, and that the name of the policeman is on his autopsy report. And that he, and not Dr. Animashaun, conducted the autopsy. PW.4 admitted that he was the pathologist hired by the family of the deceased. That makes the inconsistency between PW.3 and PW.4 as to whether or not policeman, including the accused were at the autopsy material. The PW.3 was emphatic that policemen were not at the autopsy. The PW.4 insists the policemen were

there and a policeman identified the corpse to him. PW.3 maintains that Dr. Animashaun was not present. The PW.4 posited that Dr. Animashaun, now deceased, signed the autopsy report and he was present.

Notwithstanding these material contradictions the trial Court convicted the accused person, the Appellant herein, for the murder of EARNEST NDUBUISI ONYEKWERE on 18th June, 2002, and sentenced him to death. The charge, and PW.1, PW.2 and PW.3 maintained that the person allegedly murdered was NDUDIRI ONYEKWERE. The PW.4 posited that the body he conducted autopsy on was the body of NDUBUISI ONYEKWERE identified to him by an unnamed Policeman, against the evidence of PW.3 that he was the person who identified the body of NDUDIRI ONYEKWERE to the PW.4. The identity of the person allegedly murdered by the Appellant had become an issue. It was not resolved.

It was against this background that the accused/appellant appealed against his conviction and sentence to the Court of Appeal. The Brief of Argument settled by O. P. Ulegede, Esq., of Counsel to the appellant at the Court of Appeal is at pages 707-775 of the Record. The equally humongous

Appellant’s Reply Brief is at pages 855-880 of the Record. Between the Appellant and the Respondent, the following issues on the merits stood out. That is –
“i. the identity of the deceased whether the Appellant allegedly murdered NDUDIRI ONYEKWERE OR ERNEST NDUBUISI ONYEKWERE.
ii. why the family of the deceased stealthily moved his corpse from the General Hospital, Ikeja to General Hospital Lagos for autopsy without the knowledge or approval of the police investigating authorities.
iii. who between PW.3 and PW.4 identified the body to the pathologist for the autopsy to be performed on the body.
iv. who between the PW.4 and Dr. Animashaun performed the autopsy.
v. if it is true, as PW.4 Prof. Elesha claimed, that he did the autopsy then it was suspect since he was hired by the Onyekwere family to represent their interest.
vi. The material contradictions between the PW.3 and PW.4: PW4 Prof. Elesha claimed on oath that a policeman identified the corpse to him. The PW.3 on oath averred that he, not the police, identified the body to PW.1, and it was the body of NDUDIRI ONYEKWERE. The PW.4 insisted that a policeman identified

the body of NDUBUISI ONYEKWERE (not Ndudiri Onyekwere) to him before he performed the autopsy.
vii. Contrary to the charges framed by the Prosecution that the person murdered was NDUDIRI ONYEKWERE, the learned trial Judge in his judgment found that the person murdered was EARNEST NDUBUISI ONYEKWERE. Other Prosecution witnesses identified the deceased as NDUDIRI ONYEKWERE. Only the PW.4 and the trial Judge identified the deceased variously as NDUBUISI ONYEKWERE or ERNEST NDUBUISI ONYEKWERE.”

The learned counsel raised a litany of other complaints against the Judgment of the leaned trial Judge, the sum total of which is that the conviction of the Appellant by him was perverse. In the Judgment, at page 585 of the Record, the learned trial Judge confirms an aspect of the PW.3’s evidence, that is: that no policeman was at the autopsy. He held that policemen were “never supposed to be present, it is only the relations that would identify the corpse and are usually there”. This holding unwittingly found the PW.4 to be a liar.

In a seeming self contradiction, the learned trial Judge at page 625 of the Record held that the PW.3 identified the

corpse to the PW.4 (contrary to PW.4’s categorical evidence that a policeman did).

The Respondent’s Counsel did not help the matter. In Paragraph 5.6.5 of his Brief of Argument, at page 842 of the Record, the learned counsel submits:
Furthermore, there is no evidence on record to show that any Ndubisi Onyekwere existed let alone murdered. There is no evidence on record that the police had another case of murder involving any Ndubisi Onyekwere as to make this Court believe that the Appellant was wrongly convicted.”

The only reasonable deduction from this is that it was perverse of the trial Court to convict Appellant for the murder of NDUBISI ONYEKWERE.

He had at pages 840 of the Record, at Paragraph 5.6.2 of his brief further submitted:
“It is very clear from the charge and the entire proceedings of the [High] Court that the individual murdered is Ernest Ndudiri Onyekwere. The testimonies of all the prosecution witnesses and of the Defence is also clear as to the fact that the name of the deceased is Ndudiri Onyekwere.”

The Respondents counsel, an officer of the Court, is having difficulties of intra-personal

conflict. He is torn between telling the truth and telling lies. He is clearly prevaricating. My Lords, this Court per Ariwoola, JSC, recently stated in DR. MICHAEL EMUAKPAROR ABEKE v. BARR. A. A. ODUNSI & ANOR. (2013) LPELR-20640 (SC) that –
“parties, as litigants, are not permitted to approbate and reprobate in the conduct of their case. See EZOMO v. A.G. BENDEL (1986) 4 NWLR (Pt. 36) 448 at 462; KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) 659; (2001) 7 SCM 155; OSUJI v. EKEOCHA (2009) 10 SCM 72 at 93.”
The prosecution charged the Appellant for the murder of NDUDIRI ONYEKWERE, NOT NDUBUISI ONYEKWERE, NDUBISI ONYEKWERE, ERNEST NDUBISIS ONYEKWEKWERE, or EARNEST NDUBUISI ONYEKWERE. If therefore they led evidence proving the death of NDUBISI ONYEKWERE through PW.4, then another version of the same murder has been introduced. In PAUL AMEH v. THE STATE (1972) 6-7 SC 27, this Court held that when the prosecution presents two versions of one offence charged, then they had failed to prove the guilt of the accused beyond reasonable doubt. The trial Court is obligated not to convict an accused person in the circumstance and to treat the prosecution’s case

as unreliable when there are material contradictions in the prosecution’s case. See ENAHORO v. THE QUEEN (1965) NMLR 265; KALU v. THE STATE (1988) 4 NWLR (Pt. 90) 503; UKUT v. THE STATE (1995) 9 NWLR (Pt. 420) 392. In the face of material contradictions, there can be no proof beyond doubt in a criminal proceeding.

My Lords, the Court of Appeal per Akinbami J.C.A. whose lead Judgment was concurred by Jauro and Pemu, JJCA, had alluded to the following adverse facts against the Respondent which the Court never bothered to consider. That is at pages 900-902:-
“2.03. It is on record that the Appellant maintained consistently and throughout that he worked at the materiel time at State C.I.D. Panti Yaba. This is clearly borne out from his statements to the police in evidence as Exhibits A-A7 Exhibit L which is the Interim Investigations Reports by the Police which exonerated the Appellant from the death of the suspect collaborated (sic,) the position of the appellant because therein, the report consistently posited Appellant as an officer working at State C.I.D. Panti Yaba. The Report Exhibit L was made by the high rank of the police who are in position to

know the actual location of the appellant at the time material to the commission of this offence. PW2 whose evidence the Respondent wants the Court to prefer to that of the Appellant and Exhibit L and to rely on that of PW2 read the statement of the Appellant Exhibits A-A7 after the appellant made them. PW2 never challenged the Appellant and or contested the contents of the Exhibit A-A7. Exhibit A-A7 is evidence produced by the same prosecution that produced the evidence PW2 and Exhibits O and P before the trial Court.
2.04. There is nowhere PW1 stated that his arrest at the SARS Ikeja was carried out by the Appellant and or that the Appellant was involved in the arrest in question. And even if the Appellant was involved in the arrest in question. And even if the appellant was involved in the arrest of PW1, not concede, that per se is no reason why he should be convicted for the death of the suspect.
2.05. It is submitted that the statements of the Appellant Exhibit A-A7, the testimonies of PW1, PW2, PW4 and Exhibits O and P all comes from the prosecution. And if these pieces of the evidence contradicts one another, as they have done here, then the

contradictions under the versions of the Respondent on this point untenable and in favour of the Appellant and Honourable Court is urged to so hold.
2.06. It is not the law that once a person is connected by evidence with the place where an offence took place, that alone without more, makes such person culpable for the commission of the offence and for which he must be convicted which is the position the Respondent wants to put across to this Honourable Court.
2.07. Therefore, the connection of the Appellant with SARS Ikeja is no reason sufficient to hold that the appellant committed the offence and for Appellant to be convicted for the offence as did the trial Court.
2.08 It is equally submitted that an accused person was found to have tell a lie (sic) on a particular point is a good reason why the accused person should be held responsible for the commission of a particular offence and in this case, the death of the suspect and there sustain the wrong conviction of the appellant by the trial court.
2.09. The Appellant is not the maker of Exhibits O and P. Exhibits O and P were never shown to the Appellant and Appellant adopted their

contents before they were admitted in evidence. The Exhibits O and P cannot therefore be used for the purpose of contradicting the evidence of the Appellant and impeaching the credibility of the Appellant as did the trial Court and which the Respondent is urging this Honourable Court to follow purported under Section 210(c) of the Evidence Act and in paragraph 5.2.1 and 5.2.2 on page 27 of the Respondent’s Brief of Argument. What happened here and which the Respondent is still urging this Honourable to do is contrary to Section 210(c) of the Evidence Act and this should not be accepted by the Honourable Court.”

The foregoing issues of fact completely exonerate the Appellant of the allegation that he murdered the deceased. On these state of facts he was entitled to be discharged and acquitted. The failure of the prosecution to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See AMEH v. THE STATE (supra), JUA v. THE STATE (2010) 4 NWLR (Pt. 1184) 217 SC.

The Court of Appeal, not being the final Court, was enjoined to consider and resolve all issues raised in the appeal. The

issues are not trivial. If considered and resolved in his favour, the Appellant was entitled to an order of discharge and acquittal. Take for instance the submission “that the Statements of the Appellant Exhibits A-A7, the testimonies of PW.1, PW.2, PW.4 and Exhibit P all come from the prosecution. And if these pieces of evidence contradict one another, as they have done here, then the contradictions (render) versions of the Respondent on this point untenable and in favour of the Appellant”, which raises the issue of the prosecution’s evidence incapable of proving the guilt of the Appellant beyond reasonable doubt. It was held in PAUL AMEH v. THE STATE (supra) that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole or its totality. When therefore pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See BOY MUKA v. THE STATE (1976) 10-11 SC 305.
As I shall show anon the Court of Appeal before

ordering fresh trial ought to have considered whether the evidence at the trial High Court justify the order for fresh trial. It is apparent that the order for fresh trial of the Appellant notwithstanding the bad state of the evidence at his first trial was perfunctory. The Court of Appeal only, in effect, considered whether the trial Court complied with Section 215 of the Criminal Procedure Law. Upon finding that Section 215 CPL was not complied with the Court of Appeal quashed the trial, conviction and sentence, and ordered fresh trial. It did not consider or resolve the first issue in the appeal suggesting that the evidence on which the Appellant was tried was full of material contradictions.
The Court of Appeal, no doubt was exercising its discretion when it made the order for fresh trial. This is a discretion that must be exercised judicially and judiciously, and not whimsically or capriciously. In making this order of “fresh trial”, the Court of Appeal seemed to have thought that the order for fresh trial was automatic once it held that the trial did not comply with Section 215 of the CPL of Lagos State.
In the recent case of GANIYU v. THE

STATE (2013) LPELR-20334 (SC) M. D. Muhammad, JSC, stated and I agree:
“Generally, it is the consensus that an appellate Court will order a retrial in the sense that the procedural requirements of the law are not complied with the trial Court and the appeal is allowed on that ground and it is clear from the record of proceedings as a whole that the evidence discloses a substantial case for a proper trial of the Accused: EDACHE v. QUEEN (1962) 1 SCNLR 22; ADISA v. A.G. WESTERN NIGERIA (1965) 1 ALL NLR, 412; and EWE v. THE STATE (1992) 6 NWLR (Pt. 264) 147 at 157.”
In the instant case, the Court of Appeal did not consider in this case “the record of proceedings as a whole” and satisfy itself if “the evidence disclosed a substantial case for proper trial of the accused” person. I had earlier reproduced portions of the proceedings. I should think the order for flesh trial, in the face of evidence which prima facie cannot sustain conviction, is oppressive, preposterous and a travesty of Justice.
In JAMES IKHANE v. C.O.P. (1977) 6 SC 78; (1977) ALL NLR 234 this point was poignantly re-stated that in arriving at the decision to order retrial

the appellate Court should advert its mind to the evidence on which the Accused was tried. If the evidence leads to possible doubt, or create reasonable doubt, an order of retrial is not appropriate. It will be oppressive to do so in the circumstance. That is why Nnamani, JSC stated –
“An order of retrial inevitably implies that one of the parties is being given another opportunity to re-litigate the same matter and certainly before deciding to make such an order – an appellate Tribunal should satisfy itself that the other party is not being wronged to such an extent that there would be miscarriage of justice.”
See BAKARE v. AKPENA (1986) NWLR (Pt. 33) 1.
Both law and equity insist that an appellate Court should be reluctant to order retrial if that will enable a party improve his battered position, and if it will further prolong the litigation unnecessarily. Public policy favours an end to litigation. Constitutionally, an order of retrial in a criminal proceeding is prima facie an aberration or negation of the right assured to the accused person by Section 36(4) of the Constitution. That is, whenever any person is charged with a criminal

offence, he shall unless the charge is withdrawn, be entitled to fair trial within a reasonable time by a Court.
Where from the totality of the evidence at the trial the appellate Court can do justice between the parties, and bring litigation to an end, an order for fresh trial is neither the best not proper. See EJINDU v. OBI (1997) 1 NWLR (Pt. 483) 505; OKEOWO v. MIGLIORE (1979) 11 SC 138; (1979) NSCC 138; SANUSI v. AMEOGUN (1992) 4 NWLR (Pt. 237) 527 at 556; ADEYEMO v. AROKOPO (1988) 2 NWLR (Pt. 79) 703 at 711.
Even in a murder case, which carries death penalty as the instant case, a retrial will not be ordered to assist the prosecution to fill in the lacuna noticed during the abortive trial, or mistrial. See EREKANURE v. THE STATE (1993) SCNJ 13; (1993) NWLR (Pt. 274) 385″.
An order for fresh trial, trial de novo or retrial is not automatic or a matter of course, once the trial is declared a nullity. Each case must be considered in its peculiar circumstances which form its background. When a trial is declared a nullity an order of retrial shall only be made if and only if the interest of justice so demands. See EDACHE v. THE QUEEN

(supra); KAJUBO v. THE STATE (1988) 1 NWLR (Pt. 73) 721.
ABDULAHI MOHAMMED v. THE STATE (2013) 218 LRCN (Pt. 2) 48 has a criminal offence with death penalty as the sentence. It was held that where an order of retrial would be oppressive, the order should not be made. Mohammed, JSC (as he then was) at page 59 of the report made a significant statement thus –
“Looking at the case of the Appellant under condition (c) earlier quoted in ABODUNDU v. THE QUEEN (1959) 1 NSCC 56, the Appellant having spent 14 years in custody as at when this appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time as ordered by the Court below. It is therefore my view that in the circumstances of the present case, it would definitely occasion greater miscarriage of justice if the order of retrial made the Court below is upheld and affirmed this Court. See OKODUWA v. THE STATE (1988) 2 NWLR (Pt. 76) 333; OKEGBU v. THE STATE (1979) 11 SC 1; BARMO v. THE STATE (2000) 1 NWLR (Pt. 641) 424; OKERE v. THE STATE (2001) 2 NWLR (Pt. 697) 397; SUMAILA UMARU v. THE STATE (2009) 8 NWLR (Pt. 1174)

134 at 145-147; (2009) 169 LRCN 1, where Musdapher, JSC (as he then was) in a similar situation as in the present case refused to uphold any order of retrial by the Court of Appeal.”
Fourteen years incarceration, between the date the appellant was taken into custody and the date the appeal was eventually heard was in ABDULLAHI MOHAMMED v. THE STATE (supra), considered oppressive for an order of retrial to issue. This Appellant has been in custody since 2002. As at today he would have been in custody for 15 years.
This Court has over the years cited with approval the five-way test for ordering retrial where there had been a mis-trial for non-compliance with mandatory procedure in criminal proceedings as enumerated in ABODUNDU v. THE QUEEN (1959) SCNLR 162. That is, that the Appeal 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 Court of Appeal is unable to 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 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 of any other person of the conviction or acquittal of the appellant, are not merely trivial; and
e). that to refuse an order of retrial would occasion a great miscarriage of justice than to grant it.”
This Court in DAMINA v. THE STATE (1995) 8 NWLR (Pt. 415) 513 at 534-535, held that the above circumstances must co-exist before an order of retrial is made. The corollary of situation (e), read together with (b) & (c), should be where to grant the order of retrial would occasion a greater miscarriage of justice than to refuse it. That was the situation in ABDULLAHI MOHAMMED v. THE STATE (supra).
In the DAMINA case (supra), like in the instant case, the evidence on the identity of the corpse or body on which the autopsy was carried out was an abysmal failure. The failure to link the body on which the post mortem examination was carried out to the person allegedly

killed by the accused person was held to be a fatal omission. In the instant case, the contradictions in the evidence of PW.3 and PW.4 together with Exhibit L are very material. The trial Court convicted the Appellant for the murder of EARNEST (ERNEST) NDUBISI ONYEKWERE, whereas the person killed was stated categorically on the charge to be NDUBIRI ONYEKWERE. No evidence explained these materially irreconcilable versions. Moreover, the learned trial Judge, like the Judge in the DAMINA case (supra) had stepped into the arena or offered to provide, gratis, the missing evidence to fill the lacuna. This Court in the DAMINA case, in the circumstances set aside the order for fresh trial on grounds of substantial miscarriage of justice to the appellant.
My Lords, in view of my foregoing analyses, the order of fresh trial made by the Court of Appeal in this case deserves to be, and it is hereby set aside. It is oppressive. It shall occasion substantial miscarriage of justice. I had alluded in this Judgment to the exonerative facts of this case before the Court of Appeal, and reproduced in extenso the portion of their judgment. These facts which the Respondent,

as adverse to the prosecution as they are, seemed to acknowledge are the facts which again he has to re-present. The witnesses who contradicted one another cannot resile from their earlier testimonies on oath. Accordingly, the order for fresh trial of the Appellant will not serve the interest of justice. It will be oppressive to put him on further trial on the same set of evidence.

Appeal allowed. The conviction and sentence of the Appellant by the trial Court for murder on charge No. ID/38c/2003 are hereby set aside. The Order of the Court of Appeal in the Appeal No. CA/L/380/2009 remitting the case back to the High Court of Lagos State for fresh trial is hereby set aside. In its place, an order discharging and acquitting the Appellant on Charge No. ID/38c/2003 is hereby entered in favour of the Appellant, and it shall be order of the trial Court and the Court of Appeal.

PAUL ADAMU GALINJE, J.S.C.: The Appellant herein was arraigned before the High Court of Lagos State charged with the murder of one Ndubuisi Onyekwere under Section 319(1) of the Criminal Code Law of Lagos State. He was also charged with preventing

the course of justice contrary to Section 126{1) of the same Criminal Code Law.

Trial commenced and PW1 had substantially testified before the Court realized that the plea of the Appellant had not been taken. The Court now ordered for the plea to be taken and the Appellant pleaded not guilty to the two counts charge.

The Appellant was represented by counsel who did not protest against the conduct of the proceedings. During the trial, the initial charge was withdrawn and replaced by a fresh charge which was later withdrawn and replaced by the initial charge. The new or amended charge was never read and explained to the Appellant and his plea taken.

At the close of the prosecution’s case and that of the defence and after counsel’s addresses, the learned trial judge after several adjournments finally delivered his judgment on the 6th December, 2007, wherein he found the Appellant guilty and sentenced him to death, despite visible contradictions in the evidence of the prosecution witnesses. The contradictions were so apparent that no reasonable Tribunal can rely on such evidence. For example, PW3 Nnenna Luke who said no autopsy was

conducted, later contradicted herself when she claimed to be present during the autopsy and that she identified the body of the deceased, Ndubuisi Onyekwere to the Pathologist, Prof. Elesha who testified as PW4. PW4 in his evidence said that a policeman who he did not name identified the corpse of Ndubuisi Onyekwere and it was he who conducted the autopsy and not Dr. Animashaun, as he was the pathologist hired by the family of the deceased.

Clearly there is a clear contradiction between the testimonies of PW3 and PW4 as to whether or not a policeman, including the Appellant were present during the autopsy. PW3 maintains that Dr. Animashaun was not present, while PW4 insisted that Dr. Animashaun, now deceased, signed the autopsy report and he was present.

The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally

guaranteed to the accused person. This burden does not shift. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 paras A-C; Sola v. The State (2005) 5 (Pt. 1) 135.

Where the prosecution’s case is infested with contradictions, clearly the prosecution has failed to prove its case beyond reasonable doubt. The Appellant ought to have been discharged and acquitted. This the trial Court did not do. The lower Court, that is the Court of Appeal dwelt only on the aspect of the arraignment of the Appellant and did not consider the case as a whole when it made an order of retrial. This I think is wrong.
To subject the Appellant to another trial on the pieces of evidence that are so contradictory and may at the end lead to his acquittal, will serve no useful purpose. To make an order for retrial, the appellate Court must advert its mind to the evidence on which the accused was found guilty. Where the totality of the evidence leads or creates reasonable doubt, an order of retrial is inappropriate. It will clearly be oppressive to subject an accused to another trial.
It is in the public interest that there should be an end to every litigation. Where

from the available evidence at the trial, the appellate Court can do justice between the parties by bringing the litigation to an end, an order for retrial is inappropriate.

For these few words and the elaborate reasoning in the lead judgment of my learned brother, SIDI DAUDA BAGE, JSC, this appeal shall be and it is hereby allowed. The order of retrial by the lower Court is hereby set aside. In the result, the appellant is hereby discharged and acquitted.

Appearances

Ocha P. Ulegede For Appellant

AND