LUKMAN ADEYEMI VS THE STATE (2013)

LUKMAN ADEYEMI VS THE STATE

(2013) LCN/4171(SC)

In the Supreme Court of Nigeria

Thursday, April 11, 2013


Case Number: SC. 486/2011

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT

MOHAMMAD SAIFULLAH MUIMTAKA-COOMASSIE, JUSTICE SUPREME COURT

NWALI SYLVESTER NGWUTA, JUSTICE SUPREME COURT

OLUKAYODE ARIWOOLA, JUSTICE SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE SUPREME COURT

 

APPELLANTS:

LUKMAN ADEYEMI

 

RESPONDENTS:

THE STATE

 

RATIO

CONDITIONS THAT MUST BE FULFILLED BEFORE AN ORDER OF RETRIAL CAN BE MADE BY AN APPELLATE COURT

(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 the offense(s) 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;

(c) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.

(d) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;

(e) The reason for declaring the trial a nullity and the overall interest or justice are also relevant.”

WHAT DOES IT MEAN TO GIVE A PLEA?

” It is trite law that to give a plea is for an accused person to formally respond personally to a criminal charge, either of “guilty”, “not guilty” or “no contest”. See; Elijah Ameh Okewu Vs. The Federal Republic of Nigeria (2012) 4 SCM 118; (2012) 2 SC (PT. 11) 1, (2012) 49 NSCQR 330.”

PLEA OF THE ACCUSED MUST BE TAKEN BEFORE TRIAL

“There is no doubt that the plea of an accused person must be taken by the trial court before his trial commences. This is in obedience to and in compliance with Section 215 of the Criminal Procedure Act. See Also; Sunday Amala Vs. The State (2004) 12 NWLR (PT. 888) 520; (2004) 6 SCM 55; (2004) 18 NSCQR 834.”

FAILURE TO TAKE PLEA BY TRIAL COURT RENDERS PROCEEDINGS A NULLITY

“Therefore, where the trial Court failed to take the plea of an accused person before he is tried, the entire proceedings are vitiated and liable to be declared a nullity. What it means is that the accused person could not have been said to be properly arraigned and this is fatal to the prosecution’s case. See; Joseph Okosun Vs. The State (1979) 3 – 4 SC 24; (1979) ALL NLR 26; (1979) LPELR 2501. It is for the failure of the trial Court to take the plea of the accused that proved fatal to the case of the prosecution in the following cases; Kajubo Vs. The State (1988) 1 NWLR (PT. 73) 721; (1988 3 SC 132 AT 154, Eyorokoromo Vs. The State (1979) 6 – 9 SC 3; Samuel Erekanure Vs. The State (1993) 5 NWLR (PT. 294) 385; (1993) 6 SCNJ 73.”

GUIDING PRINCIPLE TO ENABLE TRIAL COURT MAKE AN ORDER OF RETRIAL

”The guiding principles to enable the appellate court make an order of retrial or fresh trial has been settled in long line of cases with the locus classicus being Abodunde & Ors. Vs. The Queen 4 FSC 70. In that case, the Federal Supreme Court of Nigeria restated the five guiding principles as follows: “We are of the opinion that before deciding to order a retrial, this court must be satisfied: (a) that there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial 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 Section 11(i) 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 trial a second time. (d) that the offense or offenses 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. See also; James Ikhane vs. Commissioner of Police (1977) 6 SC 78; (1977) All NLR 234 per Obaseki, JSC.”

 

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