ALFRED ELIJAH VS THE STATE (2019)

ALFRED ELIJAH VS THE STATE

(2019) LCN/4611(SC)

In the Supreme Court of Nigeria

Thursday, June 6, 2019


Case Number: SC. 32/2012

 

JUSTICES:

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

UWANI MUSA ABBA-AJI

 

APPELLANTS

ALFRED ELIJAH

 

RESPONDENTS

THE STATE

 

 

RATIO

 

TRYING A PERSON FOR THE SAME OFFENCE TWICE – EXCEPTIONS

“In construing Section 3(1) (b) of the Decree 62, it will be appropriate to consider it alongside Section 36(9) of the 1999 Constitution, as amended. The provisions are as follows: “Section 3(1) (b) of Decree 62: “(1) where any part-heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge- (b) shall, in a criminal case, try the matter de novo pursuant to this Decree. Section 36(9) of the 1999 Constitution: (9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. (Underlining mine)

 

MEANING OF “SAVE UPON THE ORDER OF A SUPERIOR COURT”

“Section 36(9) of the Constitution, in the underlined portion, provides an exception to the bar on a person being tried twice for the same offence. The words “save upon the order of a superior court’ implies that a superior court may make such an order if the circumstances of the case warrant it. Section 1(1) of the Constitution provides for supremacy of the Constitution.”

 

REASON FOR ORDERING A FRESH TRIAL

“In Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385 & 393 – 394 H – A, this court, per Olatawura, JSC held: “The reason for ordering a fresh trial in these cases of nullity is the interest of justice where the facts presented were such that to allow the appellant to walk out of the court as a free man may amount to a miscarriage of justice more so where the facts showed that an offence had been committed. This has however not whittled down the proof required in criminal trials- proof beyond reasonable doubt. Oputa, JSC put it succinctly in Sunday Kajubo Vs The State (1988) 3 SC 132/154; (1988) 1 NWLR (Pt. 73) 721 when the learned Justice said: “These cases show that what is important is whether evidence as a whole discloses a substantial case against the appellant, and whether there are no such special circumstances as would render it oppressive to put the appellant on a trial a second time or to order him to be retried or order fresh hearing.” I believe this dictum has restated the requirements for retrial in Abondundu & 4 Ors Vs The Queen (1959) 4 FSC 70/71 – 72; (1959) SC NLR162.” Other factors to be taken into consideration, as held in: Umaru Vs The State (2009) 8 NWLR (Pt 1142) 134 @ 147 B – D and Okeqbu Vs The State (1979) 11 SC 1 are: (a)The seriousness and prevalence of the offence; (b)The probable duration and expense of the new trial; (c)The lapse of time since the commission of the offence; (d) The effect on the quality of evidence and the nature of the first trial, whether substantial or not.-

 

 

UNDERLYING CONDITION FOR ORDERING A FRESH TRIAL

“The underlying consideration is the interest of justice, not only for the appellant but also for the victim and the society as a whole. See: Kajubo Vs the State (supra) @ 744 G where it was held: “The evidence does disclose a substantial case against him (the appellant). His right to his freedom has to be weighed against the security of the general public who are entitled to be protected from armed robbers. Also the interest of justice demands that his case be properly tried so that he be acquitted and discharged on the merit or else found guilty and convicted also on the merit.”

 

 

MEANING OF RETRIAL

“The constitutional provision is against trial again on the same offence once the case has been determined and not against retrial or trial de novo. It is a plea that I have been discharged or convicted on this offence and cannot be tried again, otherwise called autre fois convict or discharge. Retrial means to conduct a new trial of an action that has already been tried. Whereas, trial de novo is a new trial on the entire case, that is, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance. See Per Olukayode Ariwoola, J.S.C in Omosaye V. State (2014) LPELR-22059(SC).”

 

 

ORDER THE COURT IS TO MAKE WHEN A CASE IS DECLARED NULL

“It is common knowledge that this Court is a Superior Court of record, in fact the highest Superior Court. Since the whole trial has been declared a nullity, which in short means that the appellant has never been tried, the relevant and appropriate order to make in the circumstance, taking the gravity of the offence and the interest of justice into consideration is the one for a fresh trial of the appellant. The lower Court is a superior Court of record as well and therefore draws from Section 36(9) of the 1999 Constitution as amended which is in pari materia to Section 33(9) of the 1979 Constitution. The Constitution remains our supreme law and by virtue of Section 36 (9) therein subsumes the powers which ensure to the lower Court under Section 19 (2) of the Court of Appeal Act. See Per Musa Datt1jo Muhammad, J.S.C in Omosaye V. State (2014) LPELR-22059(SC).

 

 

MEANING OF NULLITY

“What I have been grappling to put across was well set out by the Court in the case of Lasisi v State (2013) 12 NWLR (Pt.1367) as follows: – The term nullity means nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect. A nullity in law is an act which is avoid and lacking of any legal effector consequence whatsoever. It is beyond remedy. The act is not only bad but is incurably bad. In the instant case, the appellant was not arraigned. Thus in law, the appellant had not been tried on the charge of murder with which he was charged. The nullity of the purported trial does not in any way affect the charge against the appellant.

 

 

 

GENERAL POWERS OF THE AG OF A STATE

“With all deference to the learned Justices of the lower Court, they seem by this order to have usurped and constricted the discretionary powers of the Attorney-General of Akwa-lbom State vested clearly by Section 211 of the said 1999 Constitution that provides – 211(1) The Attorney-General of a State shall have power: a.to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court-martial in respect of any State offence created by or under any law of the House of Assembly; b. to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person The powers conferred upon the Attorney-General of a State under subsection (1) of this Section may be exercised by him in person or through officers of his Department (3) In exercising his powers under this Section, the Attorney-General of a State shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process.

 

 

 

 

(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC) The appellant and 10 others were arraigned before the Robbery and Firearms Special Tribunal of Akwa Ibom State on 7th September 1998 on a single count of armed robbery as follows: “Useni John, Okpo Gabriel, Okon Francis, Emmanuel Johnson, Alfred Elijah, Joseph Gyang, John Boye, Yusuf Hassan, Amos Farawa, Angu/u Alhassan, Inelagu Adeku Gabriel on the 30th day of August 1997 along Ikot Ekpene/Itu Highway in the Ikot Ekpene Judicial Division, while armed with offensive weapons to wit: Bayonet robbed Effiong Edit Sampson of N54,000.00 (Fifty-Four Thousand Naira) cash. Total value of property robbed N54,000.00 (Fifty-four Thousand Naira) property of Effiong Edet Sampson.” They were charged pursuant to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria (LFN) 1990. The appellant was the 5th accused. The 9th accused, Amos Farawa was reported dead on the day of the arraignment. The remaining 10 accused persons pleaded not guilty to the charge and the trial proceeded with the prosecution calling 5 witnesses and tendering 29 exhibits while each of the accused persons testified in his own defence and called no other witness. At the conclusion of the trial, in a considered judgment delivered on 3rd June, 1999, all the accused persons were found guilty as charged, convicted and sentenced to death. The court also made the following orders for the disposal of the Exhibits tendered in the case: 1.Exhibits 1-lt – to be returned to PW5 2.Exhibit 2to be returned to PW5 3.Exhibits 3 & 4 – to be returned to PW1 4.Exhibits 5, 6 & 7 – to be burnt 5.Exhibits 8, 8a & 9 – to be destroyed 6.Exhibit 10- to be returned to PW2 7.Exhibits 11-30 – to remain in the case file (See page 105 of the record). Incidentally, on 28/5/1999, the Tribunal (Consequential Amendments, etc) Decree No. 62 of 1999, was promulgated (hereinafter referred to as Decree 62). With effect from 28/5/1999, certain Judicial Tribunals, including the Robbery and Firearms Tribunals, were dissolved. The jurisdiction of the Robbery and Firearms Tribunals was then vested in the Federal High court or State High Court of the particular area where the offence was committed. Sections 2 and 3 of Decree 62 made special provisions for cases in which the trials had been concluded but judgment was yet to be delivered and for ongoing part-heard matters. Where the trial had been concluded but judgment yet to be delivered, Section 2(6) of the Decree empowered the High Court vested with jurisdiction, to deliver the judgment. By Section 3(1) (b) of the Decree, part heard criminal matters were to be tried de novo. The appellant and the 7th accused John Boye, were dissatisfied with their conviction and sentence and appealed to the Calabar Division of the Court of Appeal where they raised a single issue for determination, to wit: “Whether, having regard to the commencement date of the Tribunals (Certain Consequential Amendments, etc) Decree 1999 there was a trial or whether the judgment was not a nullity, having been delivered after the Tribunal had been divested of its jurisdiction as per Section 2 of the Decree.” The appeal was however determined on the issue formulated by the respondent, which the court found to be all-encompassing of the issue raised in the appeal. The issue reads: “In consideration of the commencement date of Decree No. 62 of 1999, whether or not the Tribunals judgment that was delivered on June 3, 1999 was valid and competent. And if the answer to this preceding question is in the negative, can this Honourable court in the circumstances order a retrial of the Appellant?” (Underlining mine) The court allowed the appeal on the ground that the judgment of the Tribunal delivered on 3/6/99 was invalid, having regard to the commencement date of Decree 62. The appellant’s conviction and sentence were set aside. The court made the following consequential order: “It is hereby ordered that in accordance with sub-section 3(l)(b) of the Tribunal (Certain Consequential Amendments, etc) Decree No. 62 of 1999, the two appellants shall be tried de novo by the High Court of Akwa I bom State. To this end, the State Attorney-General is hereby ordered, acting by virtue of his powers under Section 211 of the Constitution of the Federal Republic of Nigeria, 1999 to set in motion the appropriate measure to give effect to this order. ” The appellant, being dissatisfied with the decision, filed a notice of appeal on 7/12/2011, raising a single ground of appeal. The ground, without its particulars, reads: “Error in Law: The learned Justices of the Court of Appeal erred in law in ordering a re-trial of the appellant when it was not fair and just in the circumstances to so order.” At the hearing of the appeal on 14/3/2019, B.U. Uzuegbu Esq. adopted and relied on the appellant’s brief filed on 11/4/17 but deemed filed on 24/1/18 in urging the court to allow the appeal. T.A. Gazali Esq., Chief State Counsel, Federal Ministry of Justice, leading several other counsel adopted and relied on the respondent’s brief filed on 11/3/19 but deemed properly filed on 14/3/19 in urging the court to dismiss the appeal. The appellant nominated a sole issue for determination thus: “Was the court below right when it ordered for a retrial of the Appellant for the same offence of armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of the Laws of the Federation of Nigeria even when the trial Tribunal had on 3 – 6 – 99 ordered the destruction of the Exhibits tendered during the trial?” The respondent also distilled a single issue for determination as follows: “Whether the Court of Appeal was right when it ordered for retrial of the appellant for the same offence of armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria?” I shall adopt the more concise issue framed by the respondent in the resolution of this appeal. The appellant’s issue, as couched, is argumentative. SOLE ISSUE The appellant has no quarrel with the decision of the lower court declaring his trial before the Tribunal null and void, the Tribunal having been divested of competence and jurisdiction by Decree No. 62 with effect from 28/5/1999. His grouse is with the order for retrial or trial de novo. Learned counsel for the appellant argued that having regard to the consequential order made by the learned trial Judge directing that the exhibits should be destroyed and/or released to the witnesses, it would be nigh impossible to reassemble the said witnesses or to retrieve the exhibits for the purpose of the trial. He is of the view that the order for retrial has become academic and that the court is not wont to spend precious time on academic issues. He cited Mmamman Vs FRN (2013) 6 NWLR (Pt, 1351) 569; Audu Vs A.G. Federation (2013) 8 NWLR (Pt. 1355) 175. He noted that as at the time of filing the brief, 18 years had elapsed from the date of the judgment. He contended that a retrial of the case would be of no beneficial value to the State. In paragraph 4.06 (i) to (vi) of his brief, learned counsel itemized and particularized the exhibits ordered to be destroyed, burnt or returned to the witnesses who tendered them and submitted that by the nature of those exhibits, if they had already been destroyed or if it was impossible to retrieve them, there would be no evidence on which to base the retrial. He submitted that it would also be virtually impossible to reassemble the witnesses after 18 years and argued that this factor amounts to a special circumstance that would likely hinder the fresh trial. Learned counsel noted that judicial precedents usually relied upon when considering whether or not to order a retrial are Yusuf Abondundu Vs Queen (1959) SCNLR 162: Kaiubo Vs The State (1988) NWLR (Pt, 73) 721 and Ahmed Vs The State (1999) 7 NWLR (Pt, 612) 641. He submitted that the special circumstances of this case, which would make a retrial moot, did not arise in those cases. He also observed that there was no time lag of 18 years, as in this case, when the court ordered a retrial. He submitted that it would be oppressive to subject the appellant to a trial whose end result is moot. He urged the court to allow the appeal and set aside the judgment of the lower court in exercise of its powers under Section 36 (9) of the 1999 Constitution. He set out the principles that should guide the court in determining whether to order a retrial or not, as laid down in Abodundu’s case (supra) and submitted that the third principle, to the effect that it would be oppressive to put the appellant on trial a second time, is applicable in this case. He contended that a retrial in the circumstance of this case would amount to a breach of the appellant’s fundamental right, as enshrined in Section 34(1) (a) of the 1999 Constitution, as amended i.e. it would amount to inhuman or degrading treatment to subject him to a trial where the prosecution has no chance of discharging the burden of proving its case against him beyond reasonable doubt. With regard to Section 36(9) of the Constitution, as amended, which provides: “(9) No person who shows that he has been tried by a court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence save upon the order of a superior court,” he submitted that the Robbery and Firearms Tribunal was competent throughout the trial and that it was only the judgment delivered after the promulgation of Decree 62 that was caught by it. He urged this court to set aside the order for retrial. In reaction to the appellant’s counsel’s submissions, learned counsel for the respondent submitted that the court below properly considered and applied the relevant guiding principles before arriving at the decision to order a retrial. He argued that, as the matter was part-heard before the coming into effect of Decree 62, the order for retrial was a statutory requirement. He referred to Section 3(1) (b) of the Decree. He submitted that Section 36(9) of the Constitution, as amended applies where the trial has been terminated either by a conviction or an acquittal. He submitted that where a trial is held to be a nullity, it is incurably bad and beyond remedy. He submitted that where the 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 retried without doing violence to Section 36(9). He referred to: Lasisi Vs The State f2013) 12 NWLR (Pt. 1367) 133 He submitted that, assuming without conceding that he is shown to be a convict, Section 36(9) of the Constitution, as amended, would still not avail him because of the exception therein, to wit: “except on the order of a superior court.” He posited that the lower court is a superior court and exercises the jurisdiction hitherto conferred on the Tribunal. On the alleged unlikely availability of the exhibits, he submitted that there is no evidence before this court showing that the order of the learned trial Judge has been carried out. He submitted further that it is not the duty of this 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 this court in Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385, to the effect that where the evidence, taken as a whole, discloses a substantial case against the appellant and there are no special circumstances which would render it oppressive to put him on trial a second time, the court would not decline to make the order simply because he has spent a long time in custody. He submitted that the principles in Lasisi Vs The State (supra) were duly considered and rightly applied by the lower court in this case. He urged the court to uphold the reasoning of the court below at page 185 of the record and resolve the sole issue in this appeal against the appellant. I shall start by addressing the issue raised by learned counsel for the respondent to the effect that Section 3(1) (b) of Decree 62 is mandatory and therefore the lower court was right to have ordered a retrial even on that basis alone. Learned counsel for the appellant did not respond to this submission. I deem it important to address this issue first, as it has a bearing on whether the court had a discretion to exercise in the first place. In construing Section 3(1) (b) of the Decree 62, it will be appropriate to consider it alongside Section 36(9) of the 1999 Constitution, as amended. The provisions are as follows: “Section 3(1) (b) of Decree 62: (1) where any part-heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge- (b) shall, in a criminal case, try the matter de novo pursuant to this Decree. Section 36(9) of the 1999 Constitution: (9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order o f a superior court. (Underlining mine) Decree No. 62 of 1999 came into effect on 26th May, 1999. The commencement date of the 1999 Constitution, as provided for in Section 320 thereof, was the 29th day of May 1999. By virtue of Section 315(1) (a) of the Constitution, Decree No. 62 was an existing law at the time the Constitution came into effect and was deemed to be an Act of the National Assembly. Section 36(9) of the Constitution, in the underlined portion, provides an exception to the bar on a person being tried twice for the same offence. The words “save upon the order of a superior court’ implies that a superior court may make such an order if the circumstances of the case warrant it. Section 1(1) of the Constitution provides for supremacy of the Constitution. I therefore agree with the lower court, that notwithstanding the absolute terms in which Section 3(1) (b) of Decree 62 is couched, its provisions cannot override the provisions of Section 36(9) of the 1999 Constitution. Thus, I am of the considered view that the lower court was entitled to consider the facts and circumstances of the case in determining whether to grant a retrial or not. See Section 19(2) of the Court of Appeal Act. Cap C.36 LFN 2004, which provides: “(2) Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered, or order the appellant to be retried before a court of competent jurisdiction.” See also: Kajubo Vs The State (Supra) @ 744 E – F where Oputa, JSC held with regard to Section 33(9) of the 1979 Constitution, which is in pari materia with Section 36(9) of the 1999 Constitution: “Once (the court) makes an order for either the trial, or retrial or new trial, of the appellant, as the case may be, that order has now the backing of the Constitution and it will then be futile to argue that having declared the first trial a nullity, a retrial cannot be ordered.” It is not in dispute that the case before the Tribunal was part-heard, as of 25th May 1999 when the Tribunals were dissolved, as judgment was yet to be delivered as of that date. The case of Abondundu Vs the Queen (1959) NSCC (Vol. 1) 56 is considered the locus classicus on the factors to be considered by the court in determining whether to order a retrial or hearing de novo where the original trial has been declared a nullity. The factors, which must co-exist, are as follows: (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 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 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 of 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. See: Adeoye Vs The State (1999) 6 NWLR (Pt. 665) 74 @ 88: Amos Bude Vs The State (2016) 12 NWLR (Pt. 1525) 154. The court below was of the opinion that all the above requirements had been met and therefore ordered a retrial or trial de novo. It is the appellant’s contention on the other hand that not all the requirements were met, particularly (c) above and since all the requirements or factors did not co-exist, the court ought not to have ordered a retrial. The lower court observed that although learned counsel for the appellant relied on Abondundu’s case (supra), he failed to address the court specifically on any of the five factors stated therein as they relate to the appellant’s case. In reaching its decision, the lower court considered the gravity of the offence with which the appellants and their co-accused were charged. The court’s summary of the facts and its view thereon are at pages 184 – 185 of the record. I deem it appropriate to reproduce same below: “The appellant with 9 others accused of armed robbery were members of the Nigerian Army serving in the 82 Division of the Nigeria Army based in Enugu. On 30/8/87 [sic: 30/8/97] the 11 accused persons including the 2 appellants dressed in army uniform were travelling in a Mitsubishi bus along Calabar-Ikot Ekpene Road heading for Aba. At about 1 kilometer to Ibiakpan Junction they drove into the premises of a house where one Effiong Edet Sampson was waiting for the driver of the car which he chartered to convey him from Calabar to Aba while the driver entered into a nearby bush to ease himself. Sampson was approached by the soldiers who acting in concert punctured the tyres of the vehicle in which he was travelling with a bayonet with which they later threatened him; attacked him physically; snatched from him the bag he was carrying containing the sum of N54,000.00 and he was forced to board the bus in which the soldiers were travelling. During the journey on Uyo Road at a lonely spot in Utu Ikpe Village the vehicle stopped and Sampson was kicked out of the vehicle by one of the soldiers whom he identified as the tfh accused. Some distance from the spot he saw some Policemen on duty to whom he reported his encounter with the soldiers. The Policemen pursued the soldiers through Ikot Ekpene and with the aid of the information gathered along about the movements of the bus carrying some soldiers the bus was intercepted at Brass Junction and taken to Eziama Police Station where the soldiers were arrested and the victim’s bag containing $453,200 was recovered in the bus. It was part of the prosecution’s case that the Mitsubishi bus in which the soldiers were travelling at the time the victim, i.e Sampson was robbed was commandeered that morning by the soldiers at Opobo Junction in Aba on the pretext that the soldiers were going on an urgent assignment and ordered the bus driver to drive them to Ikot Ekpene. It was also the prosecution’s case that on route to Ikot Ekpene from Aba the soldier’s committee various acts of robbery establishing in particular, that prior to the attack on Sampson and robbing him of his money the soldiers had stopped a vehicle carrying passengers, beat up the passengers and forced one of the passengers carrying a travelling bag to join the bus in which the soldiers were travelling. It was on those facts which depict a predatory expedition of loathsome odium that the appellants and 8 other soldier were convicted and sentenced to death the 11th soldier having died before the trial of the ten others began. Independently of the provision of sub section 3(1) fb) of Decree 62 of1999 which stipulated that a part-heard criminal trial pending before Robbery and Firearm Tribunal when the Decree came into force be tried de novo, it will be a disservice to our system of judicial administration if the conviction for a serious crime can be upset by the lapse of the law and the convicted persons set free on a technical ground without qualms. That will run counter to the strident philosophy of this clime that justice is not one-way traffic as exemplified by the Supreme Court in The State Vs Aibangbee, (1988) 2 NWLR (Part 84) 548 that unmerited acquittal is an antithesis of justice. (Emphasis mine). In Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385 & 393 – 394 H – A, this court, per Olatawura, JSC held: “The reason for ordering a fresh trial in these cases of nullity is the interest of justice where the facts presented were such that to allow the appellant to walk out of the court as a free man may amount to a miscarriage of justice more so where the facts showed that an offence had been committed. This has however not whittled down the proof required in criminal trials- proof beyond reasonable doubt. Oputa, JSC put it succinctly in Sunday Kajubo Vs The State (1988) 3 SC 132/154; (1988) 1 NWLR (Pt. 73) 721 when the learned Justice said: “These cases show that what is important is whether evidence as a whole discloses a substantial case against the appellant, and whether there are no such special circumstances as would render it oppressive to put the appellant on a trial a second time or to order him to be retried or order fresh hearing.” I believe this dictum has restated the requirements for retrial in Abondundu & 4 Ors Vs The Queen (1959) 4 FSC 70/71 – 72; (1959) SC NLR162.” Other factors to be taken into consideration, as held in: Umaru Vs The State (2009) 8 NWLR (Pt 1142) 134 @ 147 B – D and Okeqbu Vs The State (1979) 11 SC 1 are: (a)The seriousness and prevalence of the offence; (b)The probable duration and expense of the new trial; (c)The lapse of time since the commission of the offence; (d) The effect on the quality of evidence and the nature of the first trial, whether substantial or not. The underlying consideration is the interest of justice, not only for the appellant but also for the victim and the society as a whole. See: Kajubo Vs The State (supra) @ 744 G where it was held: “The evidence does disclose a substantial case against him (the appellant). His right to his freedom has to be weighed against the security of the general public who are entitled to be protected from armed robbers. Also the interest of justice demands that his case be properly tried so that he be acquitted and discharged on the merit or else found guilty and convicted also on the merit.” Having carefully examined the record and particularly the proceedings before the Tribunal, it is apparent that the evidence as a whole discloses a substantial case against the appellants. The crime of armed robbery is no doubt very grave and attracts the ultimate penalty – the death penalty. It is also undisputed that at the time the offence was committed the offence of armed robbery was very prevalent in the society and it was therefore in the public interest to ensure that those partaking in the activity are dealt with according to law. I am of the considered view that the lower court properly took these factors into consideration in this case. The main bone of contention is whether, in the circumstances of this case, the order for a trial de novo was oppressive having regard to the fact that the Tribunal had ordered the destruction of some exhibits and the return of others to those who tendered them. In other words, that the quality of the evidence available to the prosecution for a new trial had been severely compromised by the orders made and it would therefore adversely affect the ability of the prosecution to prove its case. It is contended that if the prosecution is so hampered, it would be unfair to subject the appellant to the rigours of a new trial. It was also argued that it would be almost impossible to re-assemble the witnesses. My Lords, the pertinent issue is whether the lower court properly exercised its powers having regard to the peculiar facts and circumstances of the case. It is important to note that the order for a fresh trial was made three years after the nullified judgment was delivered. The trial was concluded within 9 months of the arraignment. It was speculative to argue that it would be impossible to reassemble the witnesses. This issue was raised in Erekanure’s case (supra). Notwithstanding the fact that the offence was committed in 1980 and judgment of this court delivered in 1993, a retrial was ordered. The court held that it was left to the Ministry of Justice to take necessary steps in the event that the witnesses could no longer be found. Also, although the exhibits tendered might have strengthened the prosecution’s case, it is equally speculative to contend that they could not succeed in establishing their case without them or that the order had been carried out. This is because a conviction may be based on the evidence of even a single witness, if the court finds him to be credible. In effect, it is my considered view that the reasoning of the lower court in ordering a retrial based on the facts and circumstances of the case as at 20/11/2002, was sound. The judgment was delivered three years after the judgment of the Tribunal and the new trial could have proceeded without delay. To that extent, I see no reason to interfere with the decision. On that basis, I find no merit in the appeal and it is hereby dismissed. I cannot conclude this judgment without making the following recommendation: It is now 17 years since the judgment appealed against was delivered, although the notice of appeal was filed in this court on 7/12/2011 pursuant to an order made on 12/10/2011. It is hereby recommended that the Hon. Attorney General of the Federation should consider invoking his powers under Section 174(1) (c) and (3) of the 1999 Constitution, as amended, in favour of the appellants in the event that they are still in custody. UWANI MUSA ABBA AJI, JSC: I had the privilege of reading in draft the lead judgment of my learned brother, Kekere-Ekun, JSC, just delivered. I am in entire agreement with the reasoning therein and the conclusion arrived thereat in the said lead judgment. The Appellant was arraigned with 10 others for armed robbery before the Robbery and Firearms Special Tribunal of Akwa Ibom State on 7/9/1998 and charged pursuant to section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, LFN,1990. He pleaded not guilty to the charge but after the trial, he was convicted and sentenced to death. Incidentally, the Tribunal (Consequential Amendments, etc) Decree No.62 of 1999 was promulgated and with effect from 28/5/1999, certain Judicial Tribunals including the Robbery and Firearms tribunals were dissolved. The lower court set aside his conviction on the basis that the judgment was invalid and ordered for his retrial, hence this appeal. A lone issue raised by the Appellant is: “Was the court below right when it ordered for s retrial of the Appellant for the same offence of armed robbery punishable under section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of the Laws of the Federation of Nigeria even when the trial Tribunal had on 3-6-99 ordered the destruction of the Exhibits tendered during the trial?” The constitutional provision is against trial again on the same offence once the case has been determined and not against retrial or trial de novo. It is a plea that I have been discharged or convicted on this offence and cannot be tried again, otherwise called autre fois convict or discharge. Retrial means to conduct a new trial of an action that has already been tried. Whereas, trial de novo is a new trial on the entire case, that is, on both questions of fact and issues of law, conducted as if there had been no trial in the first instance. See Per OLUKAYODE ARIWOOLA, J.S.C in OMOSAYE V. STATE (2014) LPELR-22059(SC). Section 36(9) of the 1999 Constitution (as amended) provides: “No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.” Per OPUTA, J S C in KAJUBO V. STATE (1988) LPELR-1646(SC) explained this constitutional provision thus: An Order for a retrial or a new trial or trial de novo or a venire de novo is an Order that the whole case should be retried or tried de novo or tried anew as if no trial whatever had been had in the first instance… This Court is not only a superior Court but it is also the most superior of the Courts in this country. Once it makes an order for either the trial, or retrial, or new trial, of the Appellant as the case may be, that order has now the backing of the Constitution and it will then be futile to argue that having declared the first trial a nullity a retrial cannot be ordered. It is common knowledge that this Court is a Superior Court of record, in fact the highest Superior Court. Since the whole trial has been declared a nullity, which in short means that the appellant has never been tried, the relevant and appropriate order to make in the circumstance, taking the gravity of the offence and the interest of justice into consideration is the one for a fresh trial of the appellant. The lower Court is a superior Court of record as well and therefore draws from Section 36(9) of the 1999 Constitution as amended which is in pari materia to Section 33(9) of the 1979 Constitution. The Constitution remains our supreme law and by virtue of Section 36 (9) therein subsumes the powers which enure to the lower Court under Section 19 (2) of the Court of Appeal Act. See Per MUSA DATT1JO MUHAMMAD, J.S.C in OMOSAYE V. STATE (2014) LPELR-22059(SC). For the above reasons and the detailed ones ably advanced by my learned brother, Kekere-Ekun, JSC, which I hereby adopt, I too feel that the appeal lacks merit and should be dismissed. The order of retrial made by the Court below is hereby affirmed by me without any shred of equivocation. MARY UKAEGO PETER-ODILI, JSC: I am in total agreement with the judgment just delivered by my learned brother, Kudirat Motonmori O. Kekere-Ekun, JSC and to register the support I have in the reasoning from which the decision emanated, I shall make some remarks. This appeal is against the judgment of the Court of Appeal dated 20th November, 2002, Coram: D. C. Edozie JCA (as he then was), S. O. Ekpe and S. A. Olagunju JJCA which decision was to allow the appeal and set aside the conviction and sentence of the appellant as ordered by the Armed Robbery and Firearms Tribunal per Philomena Etim 1 of the Ikot Ekpene Division, Akwa Ibom State. The fuller details leading to this appeal are set out in the lead judgment and so there is no point repeating them except for when the occasion warrants a reference to any part. The hearing of the appeal took place on the 14/3/19 at which learned counsel for the appellant, B. C. Uzuegbu Esq., adopted the brief of argument of the appellant filed on 11/7/17 and deemed filed on 24/1/18 in which was crafted a single issue which is as follows: – Was the court below right when it ordered for a re-trial of the appellant for the same offence of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap.398 of the Laws of the Federation of Nigeria even when the trial Tribunal had on 3/6/99 ordered the destruction of the exhibits tendered during trial. Learned counsel for the respondent, T. A. Gazali, Chief State Counsel, Federal Ministry of Justice adopted the brief of argument filed on 11/3/19 and deemed filed on the 14th March 2019 and he adopted the issue as formulated by the appellant. SINGLE ISSUE: Was the Court below right when it ordered for a re-trial of the appellant for the same offence of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of the Laws of the Federation of Nigeria even when the trial Tribunal had on 3/6/99 ordered the destruction of the exhibits tendered during the trial. Learned counsel for the appellant contended that the Court of Appeal or Lower Court or Court below was right when it held that Decree N0.62 of 1999 took effect from 28/5/1999 and by express implication, the Tribunal had timed the appellant under the Robbery and Firearms Decree which stood dissolved with effect from that date. That for that reason every step taken by the Tribunal thereafter including the trial and conviction of the appellant for the offence of armed robbery was null and void, the Tribunal having been robbed or deprived of its enabling competence and jurisdiction by the said Decree. He cited Timitimi v Amabebe 14 WACA 374; Madukolu v Nkemdilim (1962) ANCR 581; Ifezue v Mbadugha (1984) 5 SC 79 at 76; Kubor v Dickson (2013) 4 NWLR (Pt.1345) 534. He stated that the retrial would be an act in futility in the light of the destroyed exhibits and passage of time. He cited Mmamman v FRN (2013) 6 NWLR (Pt.1351) 569; Audu v A. G. Federation (2013) 8 NWLR (Pt.1355) 175; Imegwu v Okolocha (2013) 9 NWLR (Pt.1359) 347 at 372-373. Learned counsel for the respondent submitted that the retrial order made by the Court below was in line with Section3 (1) (b) of Decree NO. 62 of 1999. He referred to Lasisi v State (2013) 12 NWLR (Pt.1367); Erekanure v State (1993) 5 NWLR (Pt.294) 398. Appellant conceded to the Tightness of the decision of the Court below that Decree NO. 62 of 1999 taking effect from 28/5/1999, the implication is that the Tribunal that tried the appellant under the Robbery and Firearms Decree had been dissolved with effect from that date and so any step that was actually taken or purported to be taken by the Tribunal thereafter pursuant to the trial and conviction of the appellant for the said offence of armed robbery was a nullity since the Tribunal lacked the competence and jurisdiction on account of the said Decree and the follow up is that the Court of Appeal was correct to set aside the conviction and sentence of the said offence. However, the appellant veered off approval of what the Lower court did with respect to its ordering a retrial for the same offence of armed robbery as learned counsel for the appellant is of the view that the Lower court ought not to have ordered a retrial but should have stopped at the point, that appellate court set aside the conviction and sentence of the appellant. The respondent’s learned counsel disagrees with that later angle on the ground that since the trial at the Tribunal was a nullity by virtue of the Decree, the implication is that no trial took place and the need for the process to be recommenced, the destruction of the exhibits notwithstanding. I shall reproduce excerpts of the decision of the Court below per Olagunju JCA thus: – “The only quibble open on the application of that provision is whether it is consistent with the provision of sub-section 36 (9) of the Constitution which has been shown in Kajubo v The State (supra) is authoritative on when a retrial may be ordered. The Appellant having raised no objection to the applicability of sub-section 3 (1) (b) of the Decree which prima facie, is not shown to be inconsistent with the provision of subsection 36 (9) of the Constitution but on the contrary both sections having palpably shown to be mutually complementary. I find to be persuasive the forceful argument of learned counsel for the respondent that the provisions of subsection 3 (1) (b) of the Decree governs this case. It is beyond doubt that as a precondition for trial de novo the proceedings on appeal were part heard pending before the Tribunal on 28/5/99 when the Decree came into force the plea of the accused persons including the appellants having been taken which is the threshold of a criminal trial that was followed by the conclusion of hearing and addresses by counsel leaving only judgment to conclude the trial”. A reference to the provisions of Section 3 (1) (b) of Decree NO. 62 of 1999 to which the Court below relied as the excerpt above shows would be of assistance at this point. It provides thus: – N0.62: “Where any part heard matter is pending before any tribunal on the date of the making this Decree the Judge: (b) Shall in a criminal case, try the matter de novo pursuant to this decree”. The stance of the appellant seems to suggest that Section 3 (1) (b) of the Decree is inconsistent with Section 36 (9) of the Constitution of the Federal Republic of Nigeria 1999 which provides thus: – “36 (9): No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”. The point has to be made that Section 36 (9) CFRN would not be applied in a simplistic mold or offhandedly, once a said trial and conviction or discharge had taken place. This is because there is a fundamental condition that must be in place for that double jeopardy concept of autrefois convict’ or ‘autrefois acquit’ to apply and that is that the court that carried out the trial and conviction or acquittal must be competent and not as in this case where the trail Tribunal had been stripped of its competence and jurisdiction on account of section 3 (1) (b) of the Decree and consequently rendered every act taken from inception of the trail to the conviction stage null and void and of no effect. What I have been grappling to put across was well set out by the Court in the case of Lasisi v State (2013) 12 NWLR (Pt.1367) as follows: – The term nullity means nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect. A nullity in law is an act which is avoid and lacking of any legal effector consequence whatsoever. It is beyond remedy. The act is not only bad but is incurably bad. In the instant case, the appellant was not arraigned. Thus in law, the appellant had not been tried on the charge of murder with which he was charged. The nullity of the purported trial does not in any way affect the charge against the appellant. The concerns of the appellant as to whether the witnesses would still be available, the possible absence of the evidence and exhibits having been destroyed would not change the course of events clearly mapped by the operating law, specifically provided under Section 3 (1) (b) of the Decree. Again to be noted is that the passage of time of the event, the purported trial, appeal and impending retrial go to no issue since the law has directed what should happen upon the dissolution of the Robbery and Firearms Tribunal wherein the appellant was arraigned and tried. This case on all fours with the present, capturing this issue of passage of time is that of Erekanure v State (1993) 5 NWLR (Pt.294) where this Honourable Court held per Kutigi JSC (as he then was) of blessed memory at page 398: In this case clearly the evidence taken as a whole discloses a substantial case against the appellant and there are no special circumstances which would render it oppressive to put him on trial a second time the fact that the offence was committed in November 1980 notwithstanding. See Abobundu v The Queen (1959) 4 FSC 70; (1959 SCNLR 162. The appellant is not serving any prison sentence when he is kept in prison custody all these years. Apart from the fact that people accused of capital offences are not normally granted bail, the appellant is kept in prison custody for his own safety too. I cannot therefore decline to order a retrial because of that, if on the other hand because of this factor, prosecution witnesses are no longer available, then the authorities in the State’s Ministry of Justice should know what to do”. The Court of Appeal rightly ordered for a retrial in line with Lasisi v State (supra) that: – The principles laid down for ordering a retrial in criminal cases are: a) That leaving aside the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantive case against the appellant; b) That there are no 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 then to grant it; e)The reason for declaring the trail a nullity and the overall interest of justice are also relevant. In the instant case, the appellant had been in custody since 2002. But when the circumstances of both the appellant and the deceased victim are considered together the order of retrial made by the Court of Appeal was not oppressive. Clearly, it is out of question to classify the retrial as an academic endeavour in the prevailing circumstances of this case where the offence is that of armed robbery, the appellant, some military personnel trained by Government to protect its citizens and the same skills and weapon provided by the citizens represented by their government is turned around to rob the same citizens. The offence is far from trivial and taking the holistic interest of justice in mind, a miscarriage of justice would be occasioned if the order of retrial is not carried out. The cases of Mmamman v FRN (2013) 6 NWLR (Pt.1351) 569; Audu v A.G. Federation (2013) 8 NWLR (Pt.1355); Imegwu v Okolocha (2013) 9 NWLR (Pt.1359) 347 at 372-373, wherein this court warned against courts spending precious judicial time on issues that are academic or hypothetical are not applicable to the case in hand which has presented peculiar circumstances that just cannot be wished off or treated with levity. This is because the appellant being a military personnel needs have the trial properly conducted in a court of competent jurisdiction to show the light where a Nation expects a bounden duty to its citizen to underscore the point that citizens are protected no matter the cost. The corollary is that if upon the retrial the innocence of the appellant is established that would also proffer lessons that no matter how long it takes, the innocent would be so displayed and acknowledged. From the foregoing and the better and fuller reasoning in the leading judgment, I see no merit in this appeal which I dismiss. I abide by the consequential orders made. Appeal Dismissed. EJEMBI EKO, JSC: On 7th September, 1998 the Appellant and others were arraigned at the Akwa-lbom State Robbery and Firearms Special Tribunal charged on a single count alleging that, while armed with bayonets, on 30th August, 1999 along Ikot Ekpene/ltu Highway, they robbed one Effiong Edit Samspon of the sum of N54,000.00. The charge was laid under Section l(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990 LFN. The Appellant was the 5th accused person. The 9th accused person allegedly died in the prison while awaiting his trial. It appears from the records that the Tribunal formally took cognisance of the information on 31st August, 1998. It was, however, only on 7th September, 1998 that the Appellant and the other nine (9) accused persons took their pleas to the charge. The trial commenced that day with the evidence of the PW.l. The prosecution closed their case on 25th May, 1999 after calling 5 witnesses. The defence commenced on 26th May, 1999 and was rounded up on 27th May, 1999. Final addresses commenced and were concluded that same 27th May, 1999. The Tribunal thereafter adjourned to 31st May, 1999 for judgment which in fact was delivered on 3rd June, 1999. The Appellant and the other accused persons were convicted and each sentenced to death on the said 3rd June, 1999. The Appellant and others had successfully appealed. The lower Court, upon partly allowing their appeal on 20th November, 2002, set aside their conviction. It however ordered their retrial, having found and held that that the criminal trial by the Court (Tribunal) of the first instance violated the express letters of Section 3(l)(b) of the Tribunal (Certain Consequential Amendments, etc) Decree, No. 62 of 1999 (hereinafter called Decree No. 62). The lower Court then made the following consequential order – It is hereby ordered that in accordance with subsection 3(l)(b) of the Tribunal (Certain Consequential Amendments, etc) Decree No. 62 of 1999, the two Appellants shall be tried de novo by the High Court of Akwa-lbom State. To this end, the State Attorney-General is hereby ordered, acting by virtue of his powers under Section 211 of the Constitution of the Federal Republic of Nigeria, 1999 to set in motion the appropriate measure to give effect to this order. With all deference to the learned Justices of the lower Court, they seem by this order to have usurped and constricted the discretionary powers of the Attorney-General of Akwa-lbom State vested clearly by Section 211 of the said 1999 Constitution that provides – 211(1) The Attorney-General of a State shall have power: a. to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court-martial in respect of any State offence created by or under any law of the House of Assembly; b. to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person The powers conferred upon the Attorney-General of a State under subsection (1) of this Section may be exercised by him in person or through officers of his Department (3) In exercising his powers under this Section, the Attorney-General of a State shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process. In making the perfunctory order of retrial purportedly under Decree No. 62 the lower Court had, at page 185 of the record, made some findings exhibited sentiments or emotions that are quite prejudicial, and these informed their order ousting or constricting the discretionary power vested in the Attorney-General by Section 211(1)(C) & (3) of the Constitution. The part of the judgment of the lower Court at page 185 I find rather unfair to the Appellant runs thus – It was part of the prosecution’s case that the Mitsubishi bus in which the soldiers were travelling at the time the victim, i.e Sampson, was robbed was commandeered that morning by the Soldiers at Opobo Junction in Aba on the pretext that the Soldiers were going on urgent assignment and ordered the bus driver to drive them to Ikot Ekpene. It was also the prosecution’s case that en route to Ikot Ekpene from Aba the Soldiers committed various acts of robbery establishing in particular, that prior to the attack on Sampson and robbing him of his money the soldiers had stopped a vehicle carrying passengers, beat up the passengers and forced one of them carrying travelling bag to join the bus in which the soldiers were travelling. It was on those facts which depict a predatory expedition of loathsome odium that the Appellants and 8 other Soldiers were convicted and Sentenced to death -. – It will be a disservice to our system of criminal justicial (sic: justice) administration if conviction for a serious crime can be upset by the lapse of the law and the convicted persons set free on technical ground without qualms. That will run counter to the strident philosophy of this clime that justice is not a one-way traffic. This statement cum emotion coming, as it is from a superior Court of record that has ordered a retrial or trial de novo of the Appellant at the court below it, is not only a cajolery on the court of trial not to enter any verdict other than the previous verdict set aside on technical grounds; it had also pre-judged the fate of the Appellant. The trial de novo had thus been made a fait accompli. I do not think that it accords with the fundamentals of our criminal justice administration that this Appellant be sent to the High Court for his trial de novo the lower Court having already contaminated the impartiality of that Court by its prejudicial comments. The verdict in the eye of every reasonable man standing officiously, is certainly a mere a fait accompli. The lower Court, pursuant to its powers under Section 15 (formerly S.16) of the Court of Appeal Act, is empowered to order that “the case be re-heard by a Court of competent jurisdiction”. That power is only exercisable in relation to the Courts or judicial authorities over which it exercises its supervisory powers. The lower Court, under Section 15 of its enabling statute, certainly has no powers to exercise its powers either to usurp, or to control and constrict the prosecutorial powers of the Attorney-General under Section 211 of the Constitution. This Court had made the point clearly in THE STATE v. S. O. ILORI & ORS. (1983) 2 SC 155 and EZOMO v. ATTORNEY-GENERAL BENDEL STATE (1986) LPELR – 1215 (SC). At pages 18 – 19 of his judgment, in EZOMO’s case (supra), Aniagolu JSC stated thus – – The Attorney-General has the power under the Common Law to discontinue criminal prosecutions. This Court found it necessary to make that clear in the State v. S. O. Ilori and 2 others (1983) 2 SC 155 where it construed Sections 160 and 191 of the 1999 Constitution. At pages 178 – 9 the Court held that: – The pre-eminent and incontestable position of the Attorney-General, under the Common Law, as the Chief Law Officer of the State, either generally as a coupled with grave responsibilities. Sections 160 and 191 of the 1979 Constitution are now replicated in, and in pari materia with, Sections 174 and 211 of the 1999 Constitution. No appellate Court, in view of the authoritative statement this Court made in respect of the powers of the Attorney-General to institute, take over and or discontinue any criminal proceedings, can in the guise of an order for retrial or trial de novo issue consequential orders that will ultimately control or constrict the powers of the Attorney-General to discontinue the criminal matter ordered to be retried. The lower Court, having order retrial or trial de novo, has no business prospectively to meddling in how either the trial Court or the prosecutorial authorities would exercise their respective discretions. The lower Court had considered in extensio and acted on the cases of ABODUNDU v. THE QUEEN (1959) SCNLR 162, KAJOBO v. THE STATE (1988) NWLR (pt. 73) 721, among others, as if they were relevant and material to the instant case. In those cases, the retrial orders were considered and issued strictly within the judicial discretion of the Courts, which of course must be exercised judicially and judiciously. In the instant case the statute, Decree No. 62, had completely usurped such judicial discretion or function and had, indeed, magisterially, albeit legislatively, expressly under Section 3(1)(b) thereof, directed trial de novo of the Appellant the same statute having dissolved the Tribunal with effect from 28th May, 1999. The judgment of the Tribunal, the subject of this appeal, was delivered on 3rd June, 1999, six days after the vesting or operative date of Decree No. 62. The promulgation of Section 3 of Decree 62 was a howling echo of the obnoxious Section 2(1) of Decree No. 45 of 1968 which provided – For avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or any other things whatsoever done or purported to be done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of Section 1 of this Decree or the circumstances under which the same has been made, given or done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation (The Fundamental Rights provisions) shall apply to any matter arising from this Decree or from any enactment or other law repealed as aforesaid. These provisions were considered in LAKANMI v. AG. WESTERN NIGERIA & ORS (1971) U. I. L. R 201 (SC). This Court construed the provision to be a clear invasion or encroachment on the constitutional separation of Powers, between the legislature and the judicature, and that the provision “was clearly a legislative sentence” on those persons named in the schedule to the said Decree No. 45 of 1968. Thus holding that: in the purported exercise of legislative powers it was not envisaged that the lawmaker, in performance of his legislative functions, would also exercise judicial powers; this Court invalidated the provision of Decree No. 45 of 1968. Though the judgment in LAKANMI v. AG. (supra) was controversially abrogated subsequently by another Decree, the point made that, in the guise of performing his legislative function it was not envisaged that the lawmaker would exercise judicial powers remains immutable and eternal. It is also only on this abuse of legislative function that it was promulgated inter alia into Decree No. 62, particularly in Section 3(l)(b) thereof that – 3. (1) where any part heard matter is pending before any Tribunal on the date of the making of this Decree, the Judge (a) ……………. (b)shall, in a criminal case, try the matter de novo pursuant to this Decree; The same Decree No. 62, having in another provision, dissolved the Tribunal and abrogated all proceedings pending before it was a part heard matter. Section 33(9) of the 1979 Constitution, as amended, was at the material time of the vesting of Decree No. 62 remained or was extant. Sections 33(9) of the 1979 are ipssima verba with Section 36(9) of the 1999 Constitution and the provisions are – No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. This provision reinforces the power an Appellate Court to order retrial or trial de novo as vested in the lower court by Section 15 of its enabling statute. I agree with the lower Court’s statement at page 181 of the Record that – with the provisions of the two constitutions on the point at issue being in pari materia the decision in KAJUBO v. THE STATE (supra) covered the provisions of Section 36(9) of the 1999 Constitution as well. Therefore, contrary to the argument of the learned counsel for the Appellants the principles on whether a retrial would be ordered in any given case does not allow being dogmatic that where a retrial is found on appeal to be a nullity a verdict of acquittal without an order of retrial must follow as an inflexible rule. The principle of law which are distillable from the foregoing analysis negate such sweeping proposition of law. In my view, the correct position which is supported by a consensus of authorities on the point is that as a general principle the fact that a criminal trial by a court of first instance is a nullity does not prevent an appellate court from making an order of retrial, the abiding consideration being interest of justice as dictated by special circumstances of a particular case. That is the point. It is these power and discretion vested in the appellate courts generally to order retrial or trial de novo upon nullifying the trial court’s judgment that Decree No. 62, particularly Section 3(l)(b) thereof, had pervasively encroached upon. That judicial discretion is not shared by the courts with the legislature as this Court stated in the LAKANMI’S case (supra). It is clear that in promulgating Decree No 62, particularly Section 3(l)(b) thereof, the legislature intended that the courts shall not operate in their normal environ – to exercise their discretion judicially and judiciously. One of the templates appellate courts use when they are called upon to decide whether or not to order retrial is the consideration whether the refusal to grant a retrial would occasion a greater miscarriage of justice than to grant. The template also includes the consideration of whether special circumstances exist as would render it oppressive to put the appellant on trial the second time. In other words, where trial de novo would be oppressive, it will not be ordered as doing so will inflict serious miscarriage of justice on the accused person. From the peculiar facts of this case retrial order would certainly be very oppressive of the Appellant. The offence was allegedly committed on 30th August 1997. He had been in incarceration since. That is about 22 years till now. The information for retrial of the Appellant and his co-accused was only filed at the Tribunal for his trial on 31st August, 1998 – one year after his arrest and detention. The provisions of Section 33 (4) of the 1979 Constitution, then extant, like Section 36(4) of the 1979 Constitution, stipulated that the Appellant like any other person charged with a criminal offence, unless the charge is withdrawn, shall be afforded and entitled to fair hearing or trial within a reasonable time by a court or Tribunal. Retrying an accused person after more than 22 years in incarceration cannot within a reasonable time, certainly. The Appellant as at the time he was in gratuitous incarceration without trial was entitled, under the extant 1979 Constitution (S. 32 thereof in pari materia with S. 35 of the 1999 Constitution), to his personal liberty and shall only be deprived of his liberty in accordance with the procedure permitted by law. The right to speedy trial in the common law principles of promptitude, according to A. M. Silungwe, Chief Justice of Zambia, in the paper: The Administration of Justice – Essentials of Fair-Trial presented at The Sixth Commonwealth Law Conference, Lagos 1980, guarantees that the prisoner – will be spared exposure to injustice that stems from uncertainty and anxiety and the difficulty of presenting the defence, for example, the by reason of blurring of memory on the part of witnesses. We always, my Lords, when ordering a retrial or trial de nono, act judicially and judiciously. In a trial delayed inordinately, not by the accused person, but by the State; and which delay flagrantly violated basic fundamental rights of the accused is clearly a travesty of justice. Let me demonstrate briefly how the culpability of the State in the inordinate delay should be a factor militating against the retrial order we are now making. The alleged offence of armed robbery was committed on 30th August 1997. It took the office of the Attorney-general, Akwa-lbom State, one (1) year to file the information at the Tribunal on 31st August 1998. The mandatory provisions of Section 9(3) of the Robbery and Firearms (special Provisions) Act, Cap 398 1990 LFN; which enjoined the Attorney General or his office to institute proceedings for the due prosecution of the Appellant within 7 days of his receiving the file containing completed Police investigation in respect of the offence had thus been violated or breached with impunity. The information containing the charge was brought pursuant to the provisions of the Act Cap 398 LFN 1990. The same Act, in Section 10 thereof, made it mandatory for the Tribunal to conclude proceedings within 7 days. From the records, the Tribunal took cognisance of the information on 31st August, 1998; on which date it adjourned the proceedings to 4th September, 1998 for the pleas of the accused person. Upon the pleas taken that date the hearing commenced. The case of the prosecution was closed on 25th May, 1999, more than a year after the Tribunal took cognisance of the information. Within two days, that is 26th & 27th May, 1999 the defence concluded their case. The judgment was delivered on 3rd June, 1999. Clearly the Appellant bore no fault in the inordinate delay of their trial. It was the fault of State – the prosecutor and the Tribunal inclusive. Equality is justice. I do not think it is just and fair that a party guilty of inordinate delay should benefit from his own iniquity by an order of retrial or trial de novo. The Appellant was in no way in pari delicto in the unwholesome delay, whereby he suffered flagrant breach of his rights to personal liberty and speedy trial guaranteed by the Constitution, and even the Act Cap 398 of LFN 1990. To order his retrial after remaining in incarceration for 22 years all because Decree No. 62 perfunctorily directs retrial, in violation of the Constitutional principle of separation of powers and in total usurpation of judicial functions, does greatly oppress the Appellant and inflict on him substantial miscarriage of justice. At the time the lower Court delivered its judgment on 20th November, 2002 it should have considered and decided whether Section 3(l)(b) and the related provisions of Decree No. 62 were in conformity with the 1999 Constitution. The only way it could have effect as an existing law, under Section 315 (1) of the 1999 Constitution, is that it “shall have effect with such modifications as may be necessary to bring it in conformity with the provisions” of the said 1999 Constitution. In as much as it purported to usurp judicial function and discretion of the Court by its legislative order of perfunctory retrial Section 3(l)(b) of the Act No. 398 LFN 1990, would not in my view, conform with the 1999 Constitution. I earlier drew attention to LAKANMI’S case wherein this Court stated that a legislation that usurped and performed judicial function was ultra vires. Section 3(l)(b) and other related provisions of Decree No. 62 fall into the category of legislations decried in LAKANMI’s case (supra). Section 3(l)(b) of Decree No. 62 does not deserve the reverence and sacrosanct given to it. In my view the order of retrial or trial de novo made by the lower Court should not stand, having been made in error. Accordingly, I allow the appeal.

COUNSELS

B. C. Uzuegbu Esq., for the Appellant|T. A. Gazali Esq., Chief State Counsel Fed. Ministry of Justice, with Adedayo Ogundele, Esq., (Chief State Counsel), T. D. Dagbe, Esq., (Senior State Counsel); O. A. Olotuntogbe, Esq., (Senior State Counsel) and C. A. Okoronkwo, Esq., (State Counsel) for the Respondent|

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