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(2017) LPELR-42589(SC)

In The Supreme Court of Nigeria

On Friday, the 30th day of June, 2017


Before Their Lordships

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria


EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria




THE STATE - Respondent(s)

Other Citations

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This appeal borders on the propriety or otherwise of an Order of Re-trial/Trial De Novo.
This is an appeal against the Judgment of the Court of Appeal, Lagos Judicial Division. By the said Judgment, the Court  nullified the Judgment of the Lagos High Court which had convicted and sentenced the Appellant to death by hanging and ordered for a retrial before another judge. 
The Appellant was a serving Police Inspector attached to the SCID Panti Yaba Lagos, under the Lagos State Police Command.
Prior to the appellant being charged to Court, one Ernest Ndudiri Onyckwere (deceased) was arrested on the 12th June, 2002, at Onitsha, Anambra State by one Sergeant Eniola Akinsulere of Alausa Police Station, Ikeja, also in Lagos State based on a complaint of armed robbery by one Gabriel Ezeze and Azubuike Ezeze who were initially 7th and 8th accused persons charged with perverting the course of justice contrary to Section 126(1) of the Criminal Code Law Cap. 32 Volume 2 of Lagos State, 1994, when the case was initially taken to Court.
Before Ernest N. Onyekwere went to Onitsha where he was arrested, he alleged that he was beaten by armed robbers to a state of coma, looked very weak and was bleeding from the nose. This was alleged to have happened on 25th May, 2002. One Mrs. Bilikisu Ismail took him to Jim- Sam hospital al No. 22 Gaskiya Road, Ijora in Lagos. The father of Ernest N. Onyekwere heard of the armed robbery incident and the injuries sustained by the son and sent one of the son to go to Lagos and bring him to Onitsha for treatment.

This led to the discharge of Ernest N. Onyekwere and after the discharge from the hospital on 19th May, 2002, it was felt he need further treatment and was taken away to Onitsha for the treatment at Chinyere Hospital.
Sgt. Akinsulere Eniola who effected the arrest of Ernest N. Onyekwere at Onitsha said the deceased made a statement to him at his office at the Divisional Crime Branch, denying the allegations against him. Accordingly he was instructed to transfer the deceased suspect to Panti C.I.D., Yaba which he did on the 17th June, 2002, by handing over the said Ndudiri Onyekwere who had bandages stained with blood on his head and several parts of his body and one Obiagwu to the IPO from Panti State CID Panti Yaba in the persons of Inspector Victor Ukah and Sgt. Abiodun Ogundele, who look them to their Department. The case was then assigned to team D9 Section of the SCID Panti Yaba, Lagos which was headed by the Appellant as the Team Leader. When Ernest N. Onyekwere was handed over to the Appellant's team. Appellant asked what the problem was leading to the injuries and he was informed by the deceased that he was pushed down from a moving vehicle and the consequences were the injuries noticed on him for which he was receiving treatment in hospital from where he was arrested by police.

???Appellant had six (6) police officers who worked under him amongst them were Inspector Victor Ukah and Sgt. Abiodun Ogundele. Investigations commenced and on 18th June, 2002, Inspector Victor Ukah and Abiodun Ogundele reported to the Appellant that the deceased took ill during the night and Appellant directed Inspector Victor Ukah, Sgt. Abiodun, Sg1. Emmanuel Akpan, Cpl Ola Oladipupo and Cp1 Kenneth Obayegbo to take the deceased to the General Hospital, Ikeja for treatment, which they did.
About four (4) days after the deceased was taken from the office to the General Hospital for treatment, the police officers came back to the office to report to the Appellant that Ernest N. Onyekwere died while waiting to be attended to by the doctor at the hospital. Appellant in turn informed his superior officer, D C, O/C Homicide of the development and the O/C Homicide, the appellant and a police photographer went to the General Hospital Ikeja Mortuary to see the body, saw the body and photographed the body and returned to the office.
The police referred the matter to the Homicide Section and one Supol James Nwakama detailed to investigate the death of Ernest N. Onyekwere.

The autopsy which was scheduled for 21st June, 2002, was suddenly shifted to 24th June, 2002.
???The body of Ernest N. Onyekwere which was deposited at the General Hospital Mortuary by the police was removed from the said mortuary to General Hospital Lagos by the relations of Ernest Onyekwere without the consent/authority of the police. There were series of interference with the body of the deceased before an autopsy was eventually conducted on the body at the General Hospital Lagos. When the alleged autopsy was conducted, the same was not carried out in the presence and or involvement of the police.

No evidence on who identified the body as that of Ernest N. Onyekwere before the alleged autopsy was carried out and no result of the autopsy was produced and made available at the trial of the Appellant in Court.
Appellant and members of his team was arrested and asked to make statements which they did. The Police Preliminary Investigation Report, which was Exhibit L, exonerated Appellant and recommended the six officers who were in the team led by the Appellant for prosecution.

As it turned out, all the six police officers recommended for prosecution went aground and only the Appellant was charged to Court, tried and convicted and sentenced to death by hanging on the 6th December, 2007.
???Appeal by the Appellant to the Court of Appeal was allowed on the 1st February, 2013 and rather than grant the order of discharge and acquittal of the appellant, the Court of Appeal ordered a retrial of the appellant and without advancing any reasons and doing so in the Peculiar circumstances of the case were never taken into consideration by the Court. 

It is based on this that the Appellant has further appealed to the apex Court.

The appeal was determined on a sole issue as raised by the Appellant and adopted by the Respondent and the Court:

"Whether the order for retrial made by the Honorable Court of Appeal without giving any reason; nor considering the circumstances of the Appellant's case was proper."

The appeal was held to be meritorious and was therefore allowed. The conviction and sentence of the Appellant by the trial Court for murder was set aside. The Order of the Court of Appeal remitting the case back to the High Court of Lagos State for fresh trial was set aside. In its place an order discharge and acquitted was entered in favour of the Appellant.

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