Retrial

The Court must be satisfied that: (a) the evidence taken may otherwise disclose the commission of the offence substantially, (b) there is no special circumstance that will render it oppressive to put the accused to trial a second time; (c) that to refuse an order for a retrial would result in a greater injustice; (d) that the offence or offences of which accused was convicted or the consequences to the accused or any other person of the conviction or acquittal of the accused, are not merely trivial.

FRN V. NASIRU YAHAYA LGC(25/01/2019) L

Permit me to remind your lordships that a retrial order becomes necessary when there had been an error in law or an irregularity in the procedure that does not make the trial a nullity or results in miscarriage of justice.

FRN V. NASIRU YAHAYA LGC(25/01/2019) L

The law has, for long, been stated by this Court in case of a retrial that in a matter where so much depends on the credibility of evidence of parties and their witnesses, the proper course to be taken by an appellate Court is to order a retrial.

FRN V. NASIRU YAHAYA LGC(25/01/2019) I

This Court has over the years cited with approval the five-way test for ordering retrial where there had been a mis-trial for non-compliance with mandatory procedure in criminal proceedings as enumerated inABODUNDU v. THE QUEEN (1959) SCNLR 162. That is, that the Appeal 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 character that on the one hand the Court of Appeal is unable to say that there has been no miscarriage of justice;
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 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 consequences to the appellant of any other person of the conviction or acquittal of the appellant, are not merely trivial; and
e). that to refuse an order of retrial would occasion a great miscarriage of justice than to grant it."
This Court in DAMINA v. THE STATE (1995) 8 NWLR (Pt. 415) 513 at 534-535, held that the above circumstances must co-exist before an order of retrial is made. The corollary of situation (e), read together with (b) & (c), should be where to grant the order of retrial would occasion a greater miscarriage of justice than to refuse it. That was the situation in ABDULLAHI MOHAMMED v. THE STATE (supra).