Does an Order of Retrial Amount to Double Jeopardy?

CASE TITLE: NMA v. STATE (2025) LPELR-81727(SC)

JUDGMENT DATE: 4TH JULY, 2025

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on order of retrial in a criminal matter.

FACTS:

This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division, delivered on the 10th of December, 2021 in Appeal No CA/ABJ/CR/466/2020, and which set aside the judgment of the High Court of Niger State delivered on the 30th of January, 2017 in Charge No NSHC/NB/2C/2010 wherein the High Court had convicted the Appellant for the offences of conspiracy and culpable homicide not punishable with death.

​The Appellant was one of seven persons arraigned before the High Court of Niger State on a two-count charge of conspiracy to do an illegal act and culpable homicide punishable with death. The Appellant and his co-accused persons were alleged to have on or about the 19th of February, 2010 agreed to do an illegal act and to have caused the death of five persons, Mohammed Idris, Suleiman Abubakar, Gbogi Idris, Fatimatu Abubakar and Mallam Ndagana, by attacking them with sticks, dane guns and cutlasses. The Appellant pleaded Not Guilty to the two counts, and the matter proceeded to trial.

The Respondent called ten witnesses and tendered the extrajudicial statement of the Appellant as well as the extrajudicial statements of the six co-accused persons in proof of its case against the Appellant and his co-accused persons. The Appellant and each of his co-accused persons gave evidence in their defence. At the conclusion of trial and after the rendering of final addresses by the Counsel to the parties, the High Court delivered a considered judgment wherein it found the Appellant and his co-accused persons guilty of criminal conspiracy and culpable homicide not punishable with death. The High Court convicted the Appellant and his co-accused persons and sentenced them to prison terms of six months with hard labour and five years with hard labour respectively with effect from 30th of January, 2017 and the sentences were to run concurrently.

​The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal against to the Court of Appeal.

​The Court of Appeal concluded that the conduct of the trial of the Appellant by the learned trial Judge violated the natural justice rule of nemo judex in causa suo and the fundamental right of the Appellant to a fair trial. The Court of Appeal declared the judgment of the High Court convicting and sentencing the Appellant to be a nullity and it remitted the case file to Chief Judge of Niger State for retrial before another Judge.

The Appellant was unhappy with the order of the Court of Appeal remitting the case file to the Chief Judge of Niger State for retrial and he caused his Counsel to file a notice of appeal to the Supreme Court against the order.

ISSUE(S) FOR DETERMINATION:

Counsel to the Appellant distilled one issue for determination in the appeal and this was:

“Whether it was proper for the Court of Appeal to have ordered a retrial of the Appellant having regard to the entire circumstances of the case.”

Counsel to the Respondent formulated one issue for determination in the appeal and it was:

“Whether, having regards to the peculiar facts and circumstances of this case, the Court of Appeal was right in ordering the retrial of the Appellant after nullifying his trial and conviction.”

DECISION/HELD:

The Court found merit in the appeal and allowed it.  ​The order for the retrial of the Appellant was set aside and in its stead, an order discharging and acquitting the Appellant was made.

RATIOS:         

• JUDGMENT AND ORDER- ORDER OF RETRIAL/TRIAL DE NOVO: Instance(s) where an order of retrial will occasion a miscarriage of justice
• JUDGMENT AND ORDER- ORDER OF RETRIAL/TRIAL DE NOVO: Principles/factors guiding the Court in making an order of retrial in a criminal matter
• JUDGMENT AND ORDER- ORDER OF RETRIAL/TRIAL DE NOVO: Whether an order of retrial will not amount to double jeopardy
• JUDGMENT AND ORDER- ORDER OF RETRIAL/TRIAL DE NOVO: Meaning of a trial denovo

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