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CIRCUMSTANCE WHERE RETRIAL WILL BE ORDERED

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The Supreme Court has in multiplicity of its decided authorities laid down some conditions which must be considered, before retrial order of cases can be made. These conditions though by no means exhaustive, includes the followings:- (a) That there had been such an error in law or an irregularity in procedure which renders the trial a nullity nor makes it possible for that appeal Court to say that there has been no miscarriage of justice; (b) That besides the error or flaw or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused person; (c) That there are no special or exceptional circumstances which would make it unjust to put the accused on trial a second time; (d) The offences on which the accused faced trial have very serious consequences; (e) That the refusal to order retrial would occasion greater injustice than to grant or order such retrial order. See the cases of Abodundu v. Queen (1959) 4 FSC 70; Mr. David Odetayo v. Mr. Michael Bamidele (2007) 5 SC 72; Cypiacus Nnadozie and Ors v. Nze Ogbunelu Mbagwu [2008] 1 SC (pt.II) 43; Edibo v. The State (2007) All FWLR (Pt. 384) 192 at 229.

— Sanusi JSC. Onuwa Kalu v. The State (SC.474/2011, 13 Apr 2017)

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DISCHARGING AND ACQUITTING ACCUSED BECAUSE OF NULLITY WILL BE ENTRENCHING TECHNICALITY

Let me stress here, My noble Lords, that Chief Mike Ahamba SAN, holds the view that the Court below ought to have discharged and acquitted his client, the appellant in the circumstance. It is my view that to do what he prayed for would to my mind amount to calling upon Court below or even this Court to learn towards technicalities, rather than doing substantial justice. This Apex Court had for quite a long time shifted its ground by the quest of doing substantial justice instead of allowing sheer technicalities to bear in its decisions. All other Courts in this country have since been following such trend as clearly manifested in the majority decision of the Court below in this instance case which approach truly speaking, highly commendable.

— Sanusi JSC. Onuwa Kalu v. The State (SC.474/2011, 13 Apr 2017)