POSITION OF LAW AS REGARD TO THE RE-CONVICTION OF ACCUSED PERSONS(DOUBLE JEOPARDY)

HABEEBULLAHI MUSA

MY_NAME_IS_HABEEBULLAHI_I_WAS_BORN_IN_NIGERIA_KWARA_STATE_ILORIN_LG._I_STARTED_MY_EDUCATION_AT_AGE7YRS_AND_I_COMPLETED_MY_SENIOR_SECONDARY_SCHOOL_2016_I_AM_CURRENTLY_STUDYING_LAW_IN_BAYERO_UNIVERSITY_KANO

1 articles

May 23, 2020

                  By

 Habeebullahi Musa Jamagada.
Introduction.

It's wide in complexion that in Nigeria administration of criminal justice to state the particular position of law as regard to re-conviction of an accused person with which he had served its punishment in the previous trial, whether the accused person may be re-convicted or may not be re-convicted on the same offence that he had been previously tried by a competent court of jurisdiction from which he was convicted or acquitted.


The ground norms (Constitution) guarantees that institution of criminal proceedings shall not be conducted against any person in respect of a crime for which the accused person had previously been tried by a court of competent jurisdiction or he had been pardoned by the appropriate authority, that's the clear and unequivocal provision of 36(10) of the 1999 CFRN

This forms the basis of the plea of pardon to a criminal charge. The appropriate authority who can grant pardon to a convict on federal offence is the president of federal republic of Nigeria while the offence which is a state offence, the governor has the pardon of mercy to grant the convicts, also see in the case of FALAE V OBASANJO (1999)4 N.W.L.R pt (559) p.476 at.495.


It could be enshrined from S 36 sub (9) of 1999 CFRN as amended, but the section saves upon the order of superior court.  


Four conditions that the plea of accuse must satisfy before he could be discharged on a plea of autre fois acquit or convict.

1. The previous trial of the accused person must have been on a criminal charge.
It's a trite and domicile law that before anybody could be charged of any criminal offence such the offence at the time of commission must have been known as an offence in written statute,see section 36(8 and 12) 1999CFRN as amended, note further, In the case of C.O.P V JOHNSON (1955) L.L.R. p.55. none is charged with offence which doesn't not prescribe to be an offence in written law.

2. THE FIRST TRIAL OF THE ACCUSED PERSON MUST BE BY A COURT OF COMPETENT JURISDICTION.

This has been celebrated in the case of      UMEZE V. THE STATE (1973) 6 S.C. p.221. that an accused person will subsequent to re-trial on the same offence, if the first trial court is lacked jurisdiction to adjudicate the case, therefore, the defense of autre fois acquit or convict will not avail him, because the court in earlier tried lack jurisdiction in the first instance. Also see CHRISTOPHER OGIDI & ORS V. MUOBIKE OKOLI & ORS (CA/E/201/2008)[2014] NGCA 41 (31 MARCH 2014)


3. THE FIRST TRIAL OF THE ACCUSED MUST HAVE ENDED WITH A CONVICTION OR ACQUITTAL.

It could be enshrined from the case of INSPECTOR GENERAL OF POLICE VS MARKE (1957) N.R.N.L.R. p.97. if he was discharged on merit, his case shall not be subject to retrial. 

However an accuse may later upon charge with the same offence, based on the notion of his discharge at first trial, if it was discharged by mere discharge.

4. THE OFFENCE FOR WHICH THE ACCUSED PERSON IS NOW CHARGED MUST BE:

i . the same as the first offence for which he was tried or 
ii. An offence of which the accused person could have been convicted of at first trial.

AN EXCEPTION TO THE PRINCIPLE OF AUTRE FOIS ACQUIT

This has been settled in the celebrated principle "lesser kindred offence" that gives an exception to the laxity of autre fois acquit. As it stated by section 179(2)C.P.A. 218(1) C.P.C.

Although, he wasn't charged with it, the success of the plea depends on the nature of the second charge, generally, an accused person who is not found guilty of the offence with which he was charged may be convicted of a lesser kindred offence.

However such the lesser offence must be related to the offence with which he was earlier charged, see the case of UGURU VS STATE (2002) 4 S.C. (pt. ii) p.13. where the conviction and sentence of the accused person for murder was substituted with a conviction and sentence for unlawful assault, also in the case of R V AGUMADU (1963) 1All N.L.R. p.203.

Conclusion.
   It is for the above reasons and the fuller reasons advanced it to be crystal clear from the S 36(9) of 1999CFRN as amended that nobody shall be subject to retrial of an alleged same  offence with kindred ingredients by which he had been convicted or acquitted or pardoned at first trial such the case is prohibited to re-prosecute after he had been previously suffered punishment or acquitted, inasmuch the doctrine of "Double jeopardy" is concerned, unless by the order of superior court, if they were found from the determination of the tried court a corridor of miscarriage of justice, on the appeal upon the case, it may reopen and rectify the default decision, in order to allow Justice prevail.

 

 

 

 

 

 

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HABEEBULLAHI MUSA

MY_NAME_IS_HABEEBULLAHI_I_WAS_BORN_IN_NIGERIA_KWARA_STATE_ILORIN_LG._I_STARTED_MY_EDUCATION_AT_AGE7YRS_AND_I_COMPLETED_MY_SENIOR_SECONDARY_SCHOOL_2016_I_AM_CURRENTLY_STUDYING_LAW_IN_BAYERO_UNIVERSITY_KANO

1 articles

May 23, 2020


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