This is provided
for under section 36(9) of the 1999
Constitution of the Federal Republic of the Nigeria.
The provision
provides thus:
“No
person who shows that he has been tried by any court of competent jurisdiction
or tribunal for a criminal offence and either convicted or acquitted shall
again be tried for that offence or for a criminal offence having the same ingredients
as that offence save upon the order of a superior court”
It should be
noted that ‘the order of a superior court’ stated in the above provision refers
to the order of retrial which a High Court or any superior court can make on
hearing appeal. As had been observed in Oruche v. Commissioner of Police (1963) 1
All NLR 262 at 265, that ‘The
Constitution clearly contemplates that an order of retrial may be made’.
A retrial may be
ordered by a superior court as a result of an appeal. It is not an infringement
of this section where such a trial is ordered by a competent court – Nafiu
Rabiu v. The State (1980) 8 – 11 SC 130 at 165. In instances of
retrial, there is still one trial for one offence and not another offence for
another trial.
However, a
single act may be contrary to several different laws and constitute several
different offences. Prosecution of each offence is not double jeopardy. Double
jeopardy is a prosecution done twice for the same offence by the same
government which the Constitution forbids – Section 36(9) of the 1999
Constitution; Sections 181 CPA & 223(1) CPC; Nafiu Rafiu v. The State
(supra); The State v. Madu & Anor. (1976) NNLR 155; North Carolina v.
Pearce (1969) 395 U.S 711.
There is no
double jeopardy where an accused is tried both for a substantive offence and
for conspiring to commit that same offence. Neither does double jeopardy
prevent both civil and criminal proceedings against a person for the same
offence. For example, even if a person is acquitted of criminal charges of
smuggling, the government may initiate civil action to seek forfeiture of the
goods alleged to have been illegally brought into the country.
There is
provision against double jeopardy subject to the qualification that a superior
court may order a retrial in the course of appeal or review proceedings
relating to the conviction or appeal – Imade v. IGP (1993) 1 NWLR (Pt. 271) 608 CA.
Also, an appeal
from a court of first instance to a higher court does not constitute second
trial for the purpose of invoking this provision – Nafiu Rabiu v. The State (supra).
Where a
competent court in one territorial division has tried and acquitted or
convicted a person for an offence, section 36(9) shall protect him from being
tried again in another territorial division or anywhere in Nigeria for the same
offence or for an offence having the same ingredients – Okoro v. Attorney-General of
Western Nigeria (1965) 1 All NLR 283.
The test of whether
an offence is the same is whether the same evidence is required to sustain
conviction. And for the provision of section 36(9) to apply, the earlier trial
must have been before a court of competent jurisdiction – Sunday Okoh v. The State (1984)
11 SC 1.
Finally, before
an accused person can be discharged on a plea of autre fois acquit or convict, the plea of the accused person must
satisfy the following conditions:
1.
The first
trial of the accused person must have been on a criminal charge;
2.
The first
trial of the accused person must be by a court of competent jurisdiction;
3.
The first
trial of the accused person must have ended with a conviction or an acquittal;
and
4.
The
offence for which the accused person is 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 the first
trial, although he was not charged with that offence.
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