‘Courts should also temper mercy with justice’
In its judgment delivered on 8th day of March, 2012 allowing appeal No. CA/B/220C/2006 against the decision of the Ondo State High Court, hereinafter referred to as the trial court, the Court of Appeal sitting at Akure, hereinafter referred to as the court below, nullified the entire proceedings of the trial court and set aside […]
In its judgment delivered on 8th day of March, 2012 allowing appeal No. CA/B/220C/2006 against the decision of the Ondo State High Court, hereinafter referred to as the trial court, the Court of Appeal sitting at Akure, hereinafter referred to as the court below, nullified the entire proceedings of the trial court and set aside appellant’s conviction for murder contrary to Section 316 (6) and the sentence of death under Section 319 (1) of the Criminal Code CAP 30 vol. II Laws of Ondo State. The court further ordered the “retrial of the appellant by a judge of the High Court of Ondo State other than Odunwo J.”
Dissatisfied with the judgment, the appellant has appealed against same to this court on a notice dated 8th but filed on the 14th day of May, 2012. The undisputed facts of the case that brought about the appeal are as briefly stated below.
The appellant and three others were charged before the Ondo State High Court for the offence of murder. On arraignment, the appellant pleaded guilty to the charge and was, after the prosecution had addressed the court, summarily convicted and sentenced to death by the trial court.
At the court below, the appellant contended that his trial, conviction and sentence by the trial court are a nullity. He urged the court to set aside the entire proceedings. In upholding the appeal before it, the lower court ordered appellant’s retrial for the same offence by a judge of the trial court other than the judge whose decision was set-aside. This appeal is against that decision of the court below.
The two issues the appellant asserts in his brief as calling for determination of the appeal read:-
“1. Whether an order of retrial can be made when there was no trial ab initio.
2. Whether the lower court ought to have made order of discharge of the appellant rather than retrial.”
The lone issue distilled in the respondent’s brief for the determination of the appeal reads :-
“Whether in the circumstances of this case the lower appellate court was right to set aside the judgment of the trial court and order a retrial of the appellant by a judge of the High Court of Ondo State other than Odunwo J.”
On issue one, learned appellant’s counsel, Chinonye Obiagwu, submits that an order for retrial presupposes that there was an initial trial. Where there was no trial at all in the eyes of the law, learned counsel contends, there cannot be an order for a retrial. In the case at hand, because of the defect intrinsic to the summary trial adopted by the trial court, it is argued, the trial of the appellant is bedeviled by a fundamental flaw which the lower court correctly held had affected the entire trial. Appellant’s trial in the eyes of the law, learned counsel submits, did not occur at all given the error manifest in the trial court’s proceedings. The appellant for that reason, submits learned counsel, should have been discharged and acquitted by the court below which, instead, wrongly ordered appellant’s retrial.
The respondent, learned appellant’s counsel however concedes is at liberty to commence appellant’s trial by taking the necessary step. Relying on the decision of this Court in Yesufu Abodundun v. The Queen (1959) SC NLR 162 at 166 in further argument, learned appellant’s counsel submits that the factors which this Court stressed must co-exist before an appellate court orders a retrial remain unavailing to the respondent. Again, 17 years after the alleged offence had occurred and seven years after the purported conviction by the trial court, it is virtually impossible to successfully try and secure appellant’s conviction. The appropriate order to make, learned counsel insists, is for the discharge and acquittal of appellant. Learned counsel further cites the decisions in Umaru v. State (2009) 8 NWLR (part 1142) 134 at 145 and urges that the appeal be allowed.
Responding, learned counsel to the respondent submits that the lower court’s decision setting aside the trial court’s judgment and ordering appellant’s retrial cannot be faulted. The trial court’s failure to enter a plea of “not guilty” for the appellant who had pleaded guilty, contends learned counsel, is, beyond being an irregularity, a fundamental breach that rendered the entire trial of the appellant a nullity. It is further contended that the trial court is also in breach of Section 36 (6) (c) of the constitution as well as Section 352 of the Criminal Procedure Act both of which make the provision of a legal practitioner to an accused who is not represented by one mandatory. The lower court is again right when it nullified the trial court’s decision that proceeded in spite of the fact that the appellant who, though being tried for a capital offence, was not represented by a legal practitioner.
The issue the appeal raises is unmistakably a very narrow one indeed. Both sides are rightly agreed that the entire proceedings leading to appellant’s conviction and sentence, given the fundamental procedural lapses therein, cannot endure. Certainly, the trial court’s failure to assign a legal practitioner to the appellant who was being tried for a capital offence constitutes a fundamental breach of the provisions of Section 36 6) (c) of the 1999 Constitution as amended and Section 352 of the Criminal Procedure Act both of which require that the court provides a legal practitioner to defend the appellant where he could not afford one. Secondly, both sides are correct in the postulation that the lower court is right to have held that the appellant could not, in spite of Section 218 of the Criminal Procedure Act, be convicted summarily for murder.
Decisions of this Court on these appear legion. The authorities also justify the lower court’s nullification of the judgment of the trial court that has arisen inspire of these lapses. The narrow issue to consider in the determination of the appeal, therefore, is whether the manner the lower court’s consequential order is couched, following the nullification of the entire proceedings of the trial court, should endure.
It has lavishly been contended by learned appellant’s counsel that the appellant cannot be “retried” since in the eyes of the law, with the lower court’s declaration that the trial court’s entire proceedings are null and void, is as if the trial of the appellant had never occurred in the first place. It is further contended that the appellant should not be “retried” because of the long period it would take to try him. These arguments are totally unacceptable as the law does not provide for the indulgence so canvassed on appellant’s behalf.
The lower court is a creature of statute. The court’s powers to make whatever order must necessarily draw from statute as well. Section 19 (2) of the Court of Appeal Act which establishes the court provides thus:-
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 by a court of competent jurisdiction.”
In Kajubo v. State (1988) 1 NWLR (part 73) 721 this Court in dealing with strikingly similar facts to those in the instant case concluded per Wali, JSC thus:-
“However with the coming into operation of the 1979 Constitution, section 33 (9) of Chapter IV of that Constitution seems to have restored that power. Section 33 (9) reads:-
‘(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.’
To be continued…
Judgment delivered by Musa Dattijo Muhammad, Jsc