INTRODUCTION

The bail process in the administration of the criminal justice system is meant to be a temporary reprieve for all defendants who have allegations made against them before the Court, pending the conclusion of the trial and at times, the hearing and determination of the appeal. It was instituted in furtherance of the constitutional presumption of innocence by which a citizen who is charged with any criminal offence is presumed to be innocent until the contrary is proved by the accuser. This is meant to avoid the unfortunate situation in which the defendant is remanded in custody for a long period of time and later found to be innocent of the charges, whereas at times they may have spent a period exceeding the maximum punishment prescribed by law, had they been convicted. This process is supported by the principle that it is better for 99 guilty persons to escape the judgment that they rightly deserve than for one innocent man to be punished unjustly. In cases of misdemeanour and other offences, bail is almost a right, but in cases of serious offences with capital punishment, bail is granted at the discretion of the presiding judge, based on the facts and circumstances of each case. Whereas one truly appreciates the challenges that prosecutors and prosecuting agencies face in cases where the defendant develops tactics to frustrate and delay their trials but it is still preferable to experience delay on behalf of the general society than for the innocent person to be incarcerated without cause. The facts of the case of David v The People of Lagos are well known to prosecutors and defence counsel involved in criminal cases virtually in all police stations and other prosecuting agencies that operate detention facilities. The Adeniji Adele Police Division where the facts arose from was very notorious for subjecting suspects to violence and torture, corruption and such other unethical practices that the police officers deploy to extort money from citizens who fall prey to their antics. This case started in March 2008 when the appellant was arrested and arraigned in court for armed robbery, just for volunteering to stand as surety to a suspect in custody and for refusing to pay the sum of money demanded as bribe by the investigating police officers. Judgment was delivered by the High Court of Lagos State on September 31, 2011. The appellant was in custody throughout the trial until he was sentenced to death. Unlike this particular appellant, many others in his position who have no means and resources to prosecute an appeal have lost their lives in very unfortunate circumstances. The appeal against the judgment of the trial court was successful and judgment was delivered by the Court of Appeal on 25th June 2013. The Court of Appeal ordered a retrial, which would mean that the appellant would remain in custody for another uncertain period. There are other citizens who may not be so privileged like the appellant to afford a further appeal to the Supreme Court. The appellant’s appeal to the Supreme Court was upheld and judgment was delivered on 27th February 2025, spanning a period of 17 years of wasted life for the appellant. This also involves reputational damage, as the appellant would have become a pariah and an outcast in the eyes of reasonable men and also in his family, community and the larger society. However, the issues arising in this case go beyond the appellant as criminal trial is not only for the accused person, but also for the complainant, the aggrieved party and the society at large, whose laws have been alleged to have been breached by the defendant and whose resources are being deployed for the investigation and prosecution.

THE FACT OF THE CASE

The facts of this case, as reported in (2025) NWLR (Pt.2024) 95, are that the appellant was arrested on 15th March 2008 in his house by three policemen in mufti around 3:30 am. The policemen took the appellant’s co-accused person who was the 1st defendant at the trial court with them when they went to arrest the appellant. The1st defendant told the appellant at the point of arrest that he had been in police detention and would need the appellant to stand as surety for his bail. The appellant was taken to the police station, the Federal Special Anti-Robbery Squad unit, at Adeniji Adele Street, Lagos. The appellant was told to write a statement which he refused to do, but was persuaded to write his bio-data and pay the sum of N120,000 as bail for the 1st defendant. The appellant informed the police he could only pay N5,000.00 which was collected from him and he was thereafter taken to a room where he was tortured. He was detained in the police cell between 15 March 2008 and 7 October 2008 before he was taken to the Magistrate Court and was thereafter arraigned at the High Court of Lagos State. At the trial, the appellant pleaded not guilty to the two-count charge of armed robbery and conspiracy to commit armed robbery with which he was charged. The prosecution called three witnesses and tendered three exhibits whilst the appellant testified by himself without calling any additional witness. At the conclusion of the trial, the trial court convicted the appellant and sentenced him to death by hanging. Aggrieved by the judgment, the appellant appealed to the Court of Appeal. The Court of Appeal found that the prosecution failed to prove the ingredients of the offences and consequently allowed the appeal. However, rather than discharge and acquit the appellant, it ordered a re-trial of the appellant at the High Court. The appellant was dissatisfied with the order of the Court of Appeal and he appealed to the Supreme Court, which unanimously allowed his appeal, thus setting him free.

The Facts and Circumstances to be Considered by Appellate Courts for Making an Order of Retrial

Appellate courts must take peculiar facts and circumstances of each case into consideration before arriving at a decision whether or not to make an order of retrial. Such peculiar facts and circumstances are: (a) whether there has been a serious lapse of time between the commission of the offence and the subsequent nullification of the trial so much so that there stands a risk that the loss of memory of events may affect the evidence and credit worthiness of witnesses as a result of the time lag; (b) the time it would take to reassemble the witnesses if they are still available; (c) the time it will take to start and complete another trial. In this case, a re-trial would not serve any useful purpose because the offences which the Court of Appeal ordered a retrial of took place 17 years previously, too long a time lapse to rely on the fickle, changeable and unstable nature of human memory of witnesses who may be re-called to testify, taking into consideration the passage of time and the ravages of aging. Furthermore, the appellant had been incarcerated for a long period of time and also the difficulty or near impossibility of procuring vital witnesses if a retrial was to be ordered already disclose special circumstances that would make a retrial oppressive. Also, the primary reason for the nullification of the trial by the Court of Appeal was because the I.P.O. who testified as the PW2 before the trial court failed to show up to complete his evidence. There was no guarantee that he would be available if retrial was ordered. The order of retrial would only enable the respondent to put the appellant on a second trial when the ingredients of the offence were not established in the first trial. That would render the retrial oppressive to the appellant and thereby occasion a greater miscarriage of justice against the appellant than to refuse the order for retrial.

The Power of Appellate Court to Make Order of Retrial

The power to make an order for a retrial is a power that lies within an appellate court’s judicial discretion, which discretion must be exercised judicially and judiciously. In exercising its discretion in favour of making an order of retrial, the paramount consideration of an appellate court is to ensure that justice is done to both parties and that the power is not exercised in such a manner that it would appear that the court is only concerned with one party being given the opportunity of remedying a defect in their case.

The Principles Governing Order of Re-trial in Criminal Trials

The factors which must co-exist and be considered by the court in determining whether to order a retrial in circumstances where the original trial has been declared a nullity are as follows: (a) where there has been an error in law, including the observance of the law of evidence or irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice; (b) where leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) where there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) where the offence or offences for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; (e) where to refuse to order a retrial would occasion a greater miscarriage of justice than to order it; and (f) to enable the prosecution adduce evidence against the appellant which may convict him when his success at the appeal is based on the absence of that same evidence.