When Appellate Court can order for Retrial of a Case
Saheed Afeez Ayinde
As clear as the Law creating the Court of Law also is the distribution of their power to entertain matters.
Court of Original Jurisdiction would entertain matters without going beyond the fence and same with the Appellate Court to entertain appeals without usurping the power of the lower courts.
The appeal is for the superior court to rectify cases before them where there seems to be errors that emanate from the lower courts decision(s) but not to dustbin the whole adjudication.
However, some certain factors could warrant the court of appellate to dustbin the lower court adjudication where it is compelling.
The factors had been beautifully enunciated in the case below:
EDIBO V. STATE citation: LOR 11:5:2007sc
As per F. F. TABAI, J.S.C:
“…In order to justify an order of retrial, an appellate court must satisfy itself of the existence of number of factors, depending on the peculiar facts and circumstances of each case. The factors include:
(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that the appellate court is unable to say that there has been no miscarriage of justice.
(b) that besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant.
(c) that there are no special circumstances that would render it oppressive to put the appellant on trial a second time.
(d) that the offence or offences with which the appellant is convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e) that to refuse an order for retrial would occasion a greater miscarriage ofjustice than to grant it.
See also Abodundu V. Queen (1959) SCN LR 162; Okoduwa v. The $tate(1988) 2 NWLR (Pt.76)