3PLR – ZAKARI GONI V THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ZAKARI GONI
V
THE STATE
COURT OF APPEAL, (JOS DIVISION)
CA/J/55/94
TUESDAY, 16TH APRIL, 1996
3PLR/1996/105(SC)
OTHER CITATIONS
7 NWLR (PT. 458) 111
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE, J.C.A. (Presided)
ADRIAN CHUKWUEMEKA ORAH, J.C.A. (Read the Leading Judgment)
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A
REPRESENTATION
A.B. Odunsi – for the Appellant
Bode Wilfred – for the Respondent
REPRESENTATION
A.A. Sangei – for the Appellant
Respondent – unrepresented
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:– Double jeopardy-Putting a man to double jeopardy – Meaning and connotation of – Whether retrial order in same case amounts to putting accused to double jeopardy
CRIMINAL LAW AND PROCEDURE:- Order of retrial in criminal cases – Condition precedent to making of same
CRIMINAL LAW AND PROCEDURE:- Preliminary Inquiry – Abolition of in Borno State
CONSTITUTIONAL LAW:– Presumption of innocence of accused person – Principle of – Effect
PRACTICE AND PROCEDURE – APPEAL:- Hearing of appeal- Need to be heard on the merit even in the absence of respondent’s participation
PRACTICE AND PROCEDURE – APPEAL:- Order of retrial in criminal cases – Condition precedent to making of
PRACTICE AND PROCEDURE – APPEAL:- Trial – Where declared a nullity on appeal- Proper order to be made by appellate court
PRACTICE AND PROCEDURE – COURT:- Lack of jurisdiction of court to try case – Appropriate order to make.
PRACTICE AND PROCEDURE – COURT:- Null decision of trial court – Whether appellate court can review
MAIN JUDGEMENT
ORAH, J.C.A. (Delivering the Leading Judgment):
At the High Court of Justice Bauchi State, holden at Bauchi, the appellant was on 18th December, 1986, convicted by A. Ike Okoye, J., in a charge No. BA/13C/85 and sentenced to death by hanging under Section 221 of the Penal Code punishable with death for culpable homicide of Adamu Musa, on or about the 16th of January, 1985, at about 18.50 hrs. at Suko Jigawa Village, Dukku Local Government Area within Bauchi Judicial Division. Aggrieved and dissatisfied with the said judgment, the appellant filed Notice of Appeal dated 11 th March, 1986, consisting of two (2) grounds of Appeal and by leave of the court filed five(5) additional grounds of appeal of which, grounds 1 and 2 filed with the Notice of Appeal are respectively the same as grounds 5 and 3 of the additional grounds filed with leave of the court. As serially numbered, the grounds of Appeal in this case are as contained in the additional grounds of appeal, grounds 1,2,3,4 and 5.
The grounds of appeal with their particulars are as follows:-
- The learned trial Judge erred in law when he convicted and sentenced the appellant to death without observing his right of fair hearing and fair trial and his error occasioned failure of justice.
PARTICULARS OF ERROR
(a) The respondent was represented by numerous counsel before the trial court.
(b) That the court did not show on the Record whether it was the appellant who engaged the services of five (5) counsel to represent him or it was the trial court that assigned the said counsel to represent the respondent.
- The trial court’s conviction and sentence of the appellant is null and void in that it was not done in compliance with the mandatory provisions of Section 185(b) of the Criminal Procedure Code Cap 30 of the Laws of Northern Nigeria applicable to Bauchi State.
PARTICULARS OF ERROR
(a) Neither the trial Judge nor any other Judge of the Bauchi State High Court granted leave to the respondent to prefer a charge for trial of the appellant by the High Court.
(b) The respondent through its counsel filed application for leave to prefer a charge under Section 185(b) of the Criminal Procedure Code and which application was never moved.
- The proceedings and ruling of the trial court in which P. W.4 was recalled and the Medical Report ‘B’ was tendered and admitted in evidence is null, void and of no effect whatsoever in that they were not signed by the signature of the trial Judge.
PARTICULARS OF ERROR
(a) The learned. trial Judge did not sign the proceedings and ruling in which the Medical Report was tendered and admitted in evidence.
(b) The proceedings and ruling of the trial court of 11th day of September, 1986 relating to Exhibit’ B’ do not bear the signature of the learned trial Judge.
- The learned trial Judge erred in law when he admitted the appellant’s statement in evidence which was made in violation of the mandatory provisions of the Criminal Procedure (Statements to Police Officers) Rules, Cap 30 of the Laws of Northern Nigeria, 1963, in that it was the appellant who thumb printed the cautionary words himself and which error occasioned failure of justice.
PARTICULARS OF ERROR
(a) The Police Officer that recorded Exhibit , A’ and rendered same into “AI” did not sign the cautionary words when they were made.
(b) It is the appellant who thumb printed the cautionary words in Exhibits “A” and “AI”.
- The decision of the trial court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the court.
Based on the said grounds of appeal, the appellant formulated the following FOUR ISSUES FOR DETERMINATION:-
“3.01: Whether or not the trial High Court which heard this case was competent to entertain it.
“3.02: Whether or not the guilt of the appellant was proved and established beyond reasonable doubt having regard to the quality of the legal evidence before the court”.
“3.03: Whether or not the proceedings and ruling of the trial court in which Exhibit “3” was admitted, are a nullity”.
“3.04: Whether or not the appellant had a fair trial.” The appellant through his counsel in accordance with the Rules of the court filed appellant’s brief of argument dated the 25th of October, 1995, on 26th October, 1995. Upon the appeal coming up before us for hearing on 28/2/96, the court noted, that the respondent was served with appellant’s brief of argument on 1/11/95 and the hearing notice for the hearing of the Appeal on 25/1/96. The respondent did not file respondent’s brief of argument in this case. Neither the respondent, its representative, nor counsel appeared in court and no explanation whatsoever was proferred to the court explaining the failure of the respondent to file respondent’s brief and excusing its absence. The court had adjourned the case for the respondent for 24/1/96 earlier on. The court in the circumstances granted counsel for the appellant’s request to proceed with the appeal pursuant to Order 6 Rule 9(e) of the Court of Appeal (Amendment) Rules, 1984,
A.A. SANGEI of learned counsel for the appellant adopted appellant’s brief of argument dated the 25th of October, 1995 and filed in court on 26/10/95 pursuant to the leave of the court granted on 24/10/95. He urged the court to allow the appeal. Judgment was reserved till 16th April, 1996.
Although, the respondent in the instant case, has for unexplained reasons, after due service of appellant’s brief of argument and the hearing notice in the case, failed and/or neglected to file respondent’s brief and failed to appear at the hearing, the appellant is not thereby, entitled to acquittal from his conviction and sentence. It is trite law, that every appeal unless discontinued, even in a civil matter, must be heard and considered on the merits, notwithstanding, that-respondent duly served with appellant’s brief of argument and hearing notice, did neither file respondent’s brief nor put in appearance and is unrepresented by counsel at the hearing and determination of the appeal. In compliance with the foregoing principle; we proceeded to hear the appeal which is, pursuant to Order 6 Rule 9( e) of the Court of Appeal (Amendment) Rules 1984 treated as having been duly argued.
We will now proceed to determine .the issues raised in the appeal on the merits. The first issue for determination is, –
“Whether or not the trial High Court which heard this case was competent to entertain it?”.
Issue one (1) for determination as above – stated, is related to ground two (2) of the grounds of appeal which complains, .that the trial Judge’s conviction and sentence of the appellant is null and void, that it was not done in compliance with the mandatory provisions of Section 185 (b) of the Criminal Procedure Code Cap 30 Laws of Northern Nigeria applicable to Bauchi State. It is submitted, that neither the trial Judge, nor any other Judge of the Bauchi State High Court granted leave to the respondent to prefer the charge for the trial of the appellant. It is submitted, that the respondent through its counsel filed an application for leave to prefer a charge under Section 185(b) of the Criminal Procedure Code, which application was never moved, consequently the charge against the appellant was prefered without leave. The proceedings, the judgment and sentence passed on the appellant are therefore nullities.
Issue number 1 (one) raised above, is very crucial, critical and fundamental. It is one that touches both the jurisdiction of the court below to entertain and hear the case and the competence of this court to hear this appeal.
As we have stated, the respondent for unexplained reasons, did not file respondent’s brief in reply to appellant’s brief of argument duly served on it and the hearing of the appeal was absent and not represented by counsel. It was therefore, in the absence of respondent’s brief of argument and counsel, not possible for the court to know precisely, whether preliminary inquiry under Section 185(b) of the Criminal Procedure Code (C.P.C.) had been abolished in Bauchi State, and if so, whether leave of a Judge of the High Court of Bauchi State is still mandatory as a condition precedent to preferring a charge in culpable homicide cases pursuant to Section 185(b) of the Criminal Procedure Code Cap 30 Laws of Northern Nigeria.
From a number of culpable homicide cases under Section 221 of the Penal Code, from Borno State, we can in any situation such as this, take judicial notice, that preliminary inquiry has been abolished in Borno State. By virtue of Section 191(2) of the 1979 Constitution and Section 7 of the C.P C., the Attorney General of Borno State, has by Borno State of Nigeria Gazette No. 44 Yolo 13 of 3rd November, 1988, empowered/delegated his powers to all LAW OFFICERS of the Ministry of Justice, other than as provided under Section 140, 141 and 253 of the Schedule to the C.P.C. to sign a charge.
It goes without argument, that preliminary inquiries have now been abolished in Borno State and the Attorney General no longer requires leave of a High Court Judge of Borno State to prosecute any person(s) without having to go through the rigorous process of preliminary inquiry and/or of seeking leave of a Judge of a High Court of the State to prefer a charge.
In the instant case, because there is no respondent’s brief of argument and/ or representation, and because, an issue of this nature has not occurred before us from Bauchi State we are not sure whether or not preliminary inquiry has been abolished in Bauchi State and leave is still required to prefer a charge as raised in the Appeal.
The fact, that there was a motion on record to prefer the charge against the appellant, which as submitted, was neither moved nor granted, appears to us to indicate that leave of court is required under Section 185(b) C.P.C. to prefer a charge. I therefore put myself on inquiry, through the Deputy Registrar of this Court. Not satisfied with the oral. answers we received, I directed the Deputy Registrar to dispatch some-one to the office of the Attorney General Bauchi State, to get the information required and if possible, a photocopy of the Gazette Notice abolishing preliminary inquiry in Bauchi State if any.
A bailiff from this Court was on 6/3/96 dispatched to Bauchi with a letter from the Deputy Registrar to the Honourable Attorney-General Bauchi State, from whom we received a hand written note dated 7/3/96 signed by the Acting Director of Public Prosecution, Bauchi State. It reads thus:-
“Preliminary Inquiries have been abolished in Bauchi State. As at now we seek leave of the High Court to file cases under Section 185(b) of the C.P.C. It (P.I.) was abolished some time in 1989/90. (I am not sure of the date please). The Edict is not handy now as the officer in charge of it has travelled.”
On record, the appellant was charged to court on 17th October, 1985 when he pleaded not guilty to the charge (See p 17 of the Record of Proceedings). In the instant case, in which the appellant was charged to court for culpable homicide contrary to Section 221 of the Penal Code on 17/10/85 and preliminary inquiry was abolished in 1989/90, but leave of a High Court of Bauchi State is still required to prefer a charge under Section 185(b) of the C.P.C., it follows that:-
(a) On 17th October, 1985 when appellant was charged under Section 185(b) of the C.P.C., preliminary inquiry was a since qua non to preferring the charge against the appellant, and even then,
(b) As between 1989/90, when preliminary inquiry was abolished in Bauchi State, leave of a High Court of the State is still a condition precedent to preferring the charge against the appellant.
In both cases (a) and (b) above, the respondent does not appear and has not been seen to have complied with the requirement of Section 185(b) of the C.P.C. and/or by leave of a High Court as subsequently amended.
Section 185(b) of the C.P.C. provides thus: “185. No person shall be tried by the High Court unless (b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court”.
There is no doubt, that by the mandatory provisions of Section 185(b) of the C.P.C., no person shall be tried by the High Court without a preliminary inquiry or a charge preferred against a person without leave of a Judge of the High Court. Section 185(b) of the C.P.C. requires the leave of a Judge of a High Court of Bauchi State, to prefer a charge in the High Court in the instant case. The provisions of Section 185(b) C.P.C. on requirement of leave to prefer a charge in the High Court are mandatory and there cannot be a valid trial in the High Court of Bauchi State, where the provisions of the Section have not been complied with.
Failure to comply with the requirements is not a mere irregularity, and non- compliance render a trial of an accused person under such circumstances a nullity.
The Section therefore, deprives the High Court of jurisdiction to try an accused person unless the conditions precedent laid down in subsection (b) of Section 185 are met. Where the conditions are not met, as in the instant case, the High Court of Bauchi State, has no jurisdiction. (See Bature v. State (1994) 1 NWLR (Pt. 302) 271 (Pp 287 para. B, 291 paras. B-D) Swiss Air v. A.C.B. Ltd. (1971) 1 All NLR 37.
From the foregoing, I am o( the firm view, that the respondent is in breach of Section 185(b) of the C.P.C. Cap 30 Laws of the Northern States of Nigeria. Leave of a Judge of High Court of Bauchi State is still required as a condition precedent to prosecute any person under the Section. Failure of the respondent to comply with the requirements of the Section renders the whole proceedings including the conviction and sentence of the appellant in the instant case a nullity. All the conditions precedent to the exercise of its jurisdiction were not duly fulfilled. That feature in the proceedings will vitiate the charge, the proceedings, conviction and sentence. (See Madukolu v. Nkemdilim (1962) 2 SCNLR 341. I am therefore, obliged to and must resolve issue 1 (one) in favour of the appellant. Ground two(2) which relates to issue (1) one also succeeds. In the result, issue (1) one has terminated the appeal. It is no longer necessary to consider issues 2 and 3 for determination in the case. Because, the charge is vitiated by non-compliance with the provisions of Section 185(b) C.P.C., the appellant was therefore tried on an incompetent charge or no charge. That being so, there was no competent charge on which appellant was tried by the High Court, convicted and sentenced.
Since the trial and proceedings of the trial High Court is a nullity, there is nothing for the Court of Appeal to review. We are called to review a nullity. The Court of Appeal has no jurisdiction or competence to review a null decision. It cannot put something on nothing. The Latin maxim is (Ex nihilo nihil fit). (See MACFOY v. U A.C. (1962) 2 AC 152. Where Lord Devlin and the Rt. Hon. L.M.D. de Silva said and I approve:-
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Applying the principles in the decided cases which I have cited and examined, and the law, I am of the firm view, that this Court has no jurisdiction to entertain the Appeal on the grounds, that the trial and the whole proceedings, conviction and sentence of the appellant is a nullity.
Where a court decides; that it has no jurisdiction to try a case or entertain an appeal, the only order it can make is to strike out the case or appeal. In the instant case, therefore, I hereby strike out the Appeal on grounds that the trial is a nullity and this Court has no competence to entertain the appeal. (See Agbenyi v. State (1995) 1 NWLR (Pt. 369) 1 at p 9.
The inevitable question which arises when a trial is declared a nullity is – How can an appellant, who in the contemplation of the law, had not even been tried, be on appeal acquitted and discharged (in the instant case) from the serious offence of culpable homicide contrary to and punishable under Section 221 of the Penal Code against him involving a sentence of death?
Any court discharging such an appellant would naturally add – “Would to God you were innocent”. And as stated by BringmanL.C.B in Lilburn’ s case (1660) 5 Haw St. 1205, “The word innocent hath a double acceptance, innocent in respect of malice and innocent in respect of fact.” For both “acceptance”, the present appellant cannot at this stage, even though his purported trial has been declared null and void, be said to be innocent in respect of malice and innocent in respect of fact. This is so because, we have not considered the issues for determination on the grounds of appeal at all on the merits.
In the contemplation of the law, where the appellant in the instant case, had not even been tried for the serious offence of culpable homicide of Adamu Musa, despite the fact, that the appellant has been incarcerated and in Prison custody since 16/1/85, the date of the offence or 18/12/86, the date of his conviction and sentence (a period of about 10 years); and in the circumstances in which we cannot say to him, “would to God you were innocent”, it becomes necessary to consider, apart from declaring the trial a nullity and striking out the appeal, what other order( s) this Court can in the circumstances make i.e. –
(i) an order discharging and acquitting the appellant on the principle, that he should not be put to double jeopardy (Nemo Debet Bis Vexaris Pro Unam Eadam Causa) meaning that, (A person should not be put to double jeopardy in the same cause (See: Abodundun v. The State (1959)SCNLR 162; (1959)4 FSC.; Nafiu Rabiu v. The State (1981) 2 NCLR 293.
(a) See: Efe v. The State (1976) 11 SC 75 (P 735 para. 28) where the case of the appellant is so studded with such fundamental lapses and inadequacies that to order a retrial is to aid the prosecution correct their serious mistakes and cause injustice to the successful appellant, the Supreme Court and indeed the Court of Appeal will be justified in refusing to order a retrial, or
(ii) order a retrial. (See Grace Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729 at p 733).
I have read through the whole proceedings of the record of Appeal, the appellant’s issues for determination in the appeal, the evidence for the prosecution (10 prosecution witnesses) and the defence of the appellant; the submissions of counsel for the parties, the judgment, verdict and sentence of the court, and without prejudice one way or the other, it does not appear to me, that this is a case in which we can say in the circumstances, “would to God you were innocent” and discharge and acquit the appellant.
It seems to me, that the alternative of remitting the case for trial or retrial before another Judge of Bauchi State High Court is a more desirable order to be made in the circumstances and the facts of this case. In dealing with a case of mistrial or retrial, the court has to bear the following factors in mind namely:-
(i) The severity of the offence and the crying competing justice to both the victim and the appellant.
(ii) The principle of not putting the appellant into double jeopardy in the same cause (NEMO DEBET BIS VEXARIS PRO UNAM EADAM CAUSA) and
(iii) The five criteria an Appeal Court must have regard to in considering the result of a mistrial.
The cardinal principle of our criminal law is.. that an accused person is presumed innocent until he is proved guilty. Because of the severity of the offence of culpable homicide and the sanctity of life, which has been abruptly cut short by an accused, justice must also be done to the victim of the offence, whose life has been cruelly and dastardly cut short and until the accused is tried and set free, depending on the special circumstances and facts of the case, and in the instant case, the appellant remains in Prison custody until tried and set free. It does not give the courts joy to see offenders escape the penalty they richly deserve. But until they are tried, they are not entitled to walk in our streets, thread the Nigeria soil and breathe Nigerian air as free and innocent men and women. Justice should be even handed both to the living and the victim that is dead.
The second consideration or factor is whether by an order of retrial by this court, the appellant who had been mistried, would be put into double jeopardy by his undergoing a fresh trial despite the mistrial and his already 10 years in Prison custody?
Putting a man into double jeopardy in the same case means a trial in a new and independent case where a man has been tried once. It does not mean, that a man may not be tried twice in the same case. A second or another trial in the same case is only a continuation of the jeopardy which began with the trial. That is not putting a man as in the instant case into double jeopardy.
The question that arises is, whether the order of retrial in the circumstances of the case is, a new and independent trial where one has been tried once,~ which case, the appellant would be put in double jeopardy which is not allowed by the law.
I find a ready answer in the case Nafiu Rabiu v. The State (1981) 2N~ 293, where Idigbe J.S.C. (of blessed memory) at pp.354-355 said:
“It is my view, that subsection 9 of Section 33 of the 1979 Constitution, clearly, anticipated, that in the cause of a “trial of an accused person from court to court for one and the same criminal offence, a court higher than the last of the intermediate court may order a Retrial notwithstanding that in the process of a trial from one court to the other, one of the intermediate courts, may have made an order, and in those circumstances, there is in my view still but one trial and not another or second trial.”
That was Idigbe, J.S.C. expounding the maxim – “Nemo Debet Bis Vexaris Pro Unam Eadam Causa” – ‘ that a man cannot be put in double jeopardy in the same cause:”. I am indeed fortified in the above view by a passage in the judgment of a very eminent Judge, Holmes J., in the case of Kepner v. United States (1903) 195 US at l30 also 24 Supreme Court Report 799 at 806 and 807 in which Holmes.J. observed:
“It is more pertinent to observe that it seems to me that logically and rationally, a man cannot be said to be in more than once in jeopardy in the same case, however often he may be tried. The jeopardy is one continuing jeopardy. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case, where a man has already been tried once. But there is no rule, that a man may not be tried twice in the same case If a statute should give the right to take exceptions (exceptions for error in trial i.e. a right of appeal) to the government. I believe it will be impossible to maintain that the prisoner would be protected by the Constitution from being tried again For the reasons which I have stated, a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below”.
Applying the principle enunciated by Idigbe J.S.C. in Nafiu Rabiu v. The State (supra) and Holmes J., in Kepner v. United States (supra), I am in complete agreement with the views expressed in those cases, that an order of retrial in this case is not putting the appellant in double jeopardy. A second trial in the same case is and must be regarded as only a continuation of the same jeopardy which began with the trial. An order of retrial in the circumstances is in accordance with the dictates of the law.
The Supreme Court in the case of Grace Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729 at p 733 laid down five (5) conditions that must co-exist before an order of retrial can be made by an Appeal Court. The Supreme Court said:
“But an Appeal Court will have due regard to the following criteria in dealing with the result of a mistrial:-
(1) That there has been such an error in law or irregularity in procedure, which neither renders the trial a nullity nor makes it possible for the Appeal Court to say that there has been no miscarriage of justice.
(2) That apart from the error of law or irregularity in procedure, the evidence taken as a whole discloses a substantial case against the appellant.
(3) That there are no special circumstances as would render it oppressive to put the appellant on trial a second time.
(4) That the offence of which the appellant has been convicted was not merely trivial, and
(5) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
The five (5) conditions stated above must co-exist before the court could order a retrial. Ankwa v. State (1969) 1 All NLR 133; Aigbe v. State (1976) 9-10 SC 77 at 93-94 followed)”.
I have as earlier on said, read through the proceedings, the evidence, submission of counsel for the parties, the judgment, reasons and conclusions pf the learned trial Judge in the case, the grounds of appeal, the issues and arguments of appellant’s counsel in the case and having regard to the criteria laid down by the Supreme Court in the case of Grace Akinfe v. The State (supra), I am satisfied that this is a proper case in which an order of retrial can be ordered. Accordingly, for the reasons which I have copiously advanced I hereby;
(i) Declare the whole proceedings including the conviction and sentence of the appellant in Suit No. BA/13C/85 for culpable homicide of ADAMU MUSA punishable with death by hanging, contrary to Section 221 of the Penal Code, decided by A. Ike Okoye J., on 18th December, 1986 a nullity and,
(ii) That the charge in the Suit No. BA/13C/85 is hereby remitted to the !J High Court of Bauchi State to be tried de novo before another Judge of the Bauchi State High Court.
OGUNTADE, J.C.A.:
I read before now a copy of the lead judgment by my learned brother Orah, J .C.A.
There is clear evidence on record to show that no leave of a judge of the High Court in Bauchi State was obtained before the charge of murder was preferred against the appellant. Section 185(b) of the Criminal Procedure Code provides thus:
“185 No person shall be tried by the High Court unless
(b) a charge is preferred against him without the holding of a preliminary inquiry by bane of a judge of the High Court.”
The above provision is mandatory and non-compliance with it will render a trial a nullity (see Bature v. State (1994) 1 NWLR (Pt. 302) 271.
I therefore agree with the lead judgment of Orah, J.C.A. I would allow the appeal and order a retrial before another judge of Bauchi State High Court.
MUNTAKA-COOMASSIE, J.C.A.:
I was privileged to have read in advance a draft copy of the lead Judgment just delivered by my learned brother Orah, J.C.A. I agree entirely with his reasoning and conclusion.
It is manifest from the record of proceeding that the entire trial, conviction and sentence of the appellant before the trial court are a nullity. That being the case, this Court cannot possibly assume jurisdiction and cannot therefore allow or dismiss the appeal as such. The best course for this court is to decline jurisdiction and to strike out the appeal herein.
The matter cannot be left as such. Justice of the case demands that this Court should make what I would call consequential Orders. Going by the Principles enunciated in Abodundun v Queen (1959) SCNLR 162; or (1959) 4 FSC 70; Grace Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729n33; and Sam v. State (1991) 1 NWLR (Pt. 176) 699. The matter before us should be remitted back to the lower court. It was recently decided by the Supreme Court in a very interesting but important case of Bakare v. Adalemo (1967) 1 QLRN) p. 17; where Nnamani J.S.C. has this to say:-
“before deciding to order a retrial, the court must be satisfied:
(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such observer that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been a miscarriage of justice, and to involve the (proviso) to Section 11(i) of the ordinance;
(b) that leaving aside the error of 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 of which the appellant was convicted or the consequence to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
Fairness demands that it is safer to expose the appellant to another round of trial than to say that status quo to be maintained. It is of utmost importance that justice should be manifestly and undoubtedly be seen to be done to both the prosecution and the convicted appellant or else a greater injustice would be occasioned thereby. In the light of the above analysis and the fuller and more elaborate reasons in the leading judgment of my learned brother Orah, J ,C.A. I too will, and hereby, strike out the appeal and order that a retrial be conducted before another judge of the Bauchi State High Court. I abide by the other consequential Orders made in the leading judgment.
Appeal allowed retrial ordered
Nigerian Cases Referred to in the Judgment:
Abodundun v. Queen (1959) SCNLR 162
Agbenyi v. State (1995) 1 NWLR (Pt. 369) 1
Aigbe v. State (1976) 9-10 SC 77
Akinfe v. State {1988) 3 NWLR (Pt.85) 729
Ankwa v. State (1969) 1 All NLR 133
Bature v. State (1994) 1 NWLR (Pt. 320) 267
Efe v. State (1976) 1 L S.C. 75
Kepner v, United States (1903) 195 US 130
Liburn’s case (1660) 5 Haw St. 1205
Macfoy v. UAC (1962) 2AC 152
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Rabiu v. State (1982)2 NCLR 117
Sam v. State (1991) 4 NWLR (Pt. 176) 699
Swiss Air v. A.C.B. Ltd. (1971) I All NLR 37
Nigerian Statutes Referred to in the Judgment:
Constitution of the Federal Republic of Nigeria 1979 Ss. 33(a) and 191(2)
Criminal Procedure Code Ss. 7,140,141, 158(b), I 85(b) and 253
Nigerian Rule of Court Referred to in the Judgment:
Court of Appeal Rules 1981 (as amended) O.6, r. 9(e)
