‘Courts should also temper mercy with justice’

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 […]

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. By the power conferred on this Court by section 33(9) of the 1979 Constitution, it is hereby ordered that the case be remitted to the High Court of Lagos State for a fresh trial of the appellant by another judge of that court.”
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. The judgment of the lower court which learned appellant counsel insists should have otherwise ordered the discharge and acquittal of the appellant, inter-alia reads:-
“In the present case the irregularities highlighted in this judgment are of such a nature that render the trial a nullity. There is no unique circumstances/factor that would make it oppressive of the appellant to put him to a fresh trial. The appellant is charged with the offence of murder with a very serious consequence on conviction – death. More in justice will be done if the order for retrial is not granted having regard to the proof of evidence filed by the prosecution.”
 The lower court’s order that the appellant be tried afresh given the clear and unambiguous words of the extant statutes is a valid exercise of the court’s statutory powers. Section 36(a) of the 1999 Constitution (as amended) empowers the court below to order, notwithstanding that appellant’s trial had been declared a nullity, that the appellant “again be tried” for the very offence he was convicted in the aborted trial.
From the words which make up the enabling statutes, there is hardly any difference in essence in the use of the word “trial”, “retrial” or “again be tried” by the lower court in its consequential order. The justice of the case does not permit any reasonable tribunal to discharge and acquit the appellant simply because the lower court has ordered, after nullifying the trial court’s proceedings, that the appellant be “retried.”
The concurring judgment of Oputa, JSC in Kajubu’s case (supra), the relevant portion of which I hereby adopt is herein under reproduced for its relevance:-
“Now, how can an appellant who in the contemplation of the law, had not even been tried, be on appeal acquitted and discharged from the serious charge against him involving a sentence of death?
 It was further argued that the appellant had been in prison custody since his arrest in 1980 and his invalid arraignment on the 25th day of August, 1981. I am sorry for the length of time the appellant has been in prison custody. However, a court of law should not only temper justice with mercy but what is sometimes vitally important it should also temper mercy with justice. And this is a case calling for mercy to be tempered with justice. The natural leaning of our minds may be favour of and in sympathy with appellant and we may in like manner be thus tempted to sympathise with any prisoner in the position of the present appellant.
But one has to sound a note of serious warning against giving away too easily to mere formal objections on behalf of accused persons. Such extreme facility may constitute a great blemish on the judicial process, owing to which more offenders may escape than by the manifestation of their innocence. The danger here is that by such “leniency” we (the courts) may imperceptibly loosen the bands of society, which is kept together by the hope of reward, and the fear of punishment.”
The lower court’s judgment which abides the decision of this Court remains unassailable. In the result, the appeal which has failed is hereby dismissed and the lower court’s judgment accordingly affirmed.
Judgment delivered by  Musa Dattijo Muhammad, Jsc: