‘Murder suspect cannot be summarily convicted’

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 […]

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.
FACTS
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.
At the hearing of the appeal on 31st October, 2013, parties adopted their respective briefs of argument which had earlier been filed and exchanged by and between them. They relied on the arguments canvassed in the briefs for and against the appeal.
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 abinitio.
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 appel-lant’s counsel, Chinonye Obia-gwu, 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.      
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 in spite 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 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 the 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 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 from pages   of the law report 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 in  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.
Appearances
C. E. Obiagwu with E. Balami for appellant
G. A. Olowoporoku Director Legal Drafting/Law Reporting, Ministry of Justice Ondo State with Taiwo Olubodun, Deputy Director of Civil Litigation, for respondent.