Background
On 29 November 2015, Haruna Ibrahim was arrested on suspicion of participating in a vigilante-led abduction and killing of Alhaji Bello Maikarfi in Alkaleri Local Government Area, Bauchi State. He and six others were initially charged with criminal conspiracy under section 97 of the Penal Code and culpable homicide under section 211, but the trial court tried him only on count one (conspiracy). On 29 January 2018, the High Court of Bauchi State (Hon. Justice A. H. Suleiman) discharged and acquitted the appellant.
The State appealed, and on 20 December 2019, the Court of Appeal, Jos Division (Justice Mudashiru Nasiru Oniyangi, JCA) allowed the appeal. It set aside the trial court’s judgment and ordered the re-arrest and arraignment of Haruna Ibrahim before another judge. Haruna Ibrahim then appealed to the Supreme Court, challenging that order as violating his constitutional protection against double jeopardy under section 36(9) of the 1999 Constitution.
The Supreme Court heard argument on one sole issue: whether the Court of Appeal’s order for re-arrest and re-trial, after setting aside an acquittal, violated section 36(9) CFRN and required a specific declaration that the original proceeding was a nullity.
Issues
- Whether directing a re-arrest and re-trial after acquittal contravenes section 36(9) of the 1999 Constitution, which protects against being tried twice for the same offence.
- Whether an appellate court must declare the original trial a nullity before ordering a retrial.
- Whether an order setting aside a judgment equates to nullification sufficient to authorize a retrial.
Ratio Decidendi
The Court reaffirmed that section 36(9) CFRN bars retrial after conviction or acquittal unless a superior court orders it. The proviso (“save upon the order of a superior court”) permits an appellate court to order a new trial (de novo) without offending double jeopardy. The Court relied on Emenuwe v. State (2024) and Abodundun v. The Queen (1959) to confirm that retrial orders:
- Fall within the constitutional exception to double jeopardy.
- Do not require an express declaration of nullity; setting aside the prior judgment suffices.
- Must be based on factors ensuring no miscarriage of justice, as outlined in Abodundun’s case.
Court Findings
The Supreme Court, through Jamilu Yammama Tukur, JSC, found:
- No double jeopardy: The retrial order was valid under the proviso to section 36(9), since it emanated from a superior court.
- Nullity declaration unnecessary: There is no statutory requirement to pronounce a trial a nullity before ordering retrial. Setting aside the judgment effectively nullifies the prior proceeding.
- Factors for retrial: Although not expressly recited, the Court of Appeal implicitly considered the five Abodundun factors:
- Error or irregularity warranting retrial without rendering the entire trial void.
- Evidence, taken as a whole, discloses a substantial case against the appellant.
- No special circumstances rendering a second trial oppressive.
- The offence and its consequences are not trivial.
- Refusing retrial would result in a greater miscarriage of justice than granting it.
These criteria justified the Court of Appeal’s decision to order a retrial. The appellant’s challenge to the trial court’s evaluation of evidence confirmed the necessity of a fresh hearing.
Conclusion
By a unanimous decision delivered on 2025-01-31, the Supreme Court dismissed Haruna Ibrahim’s appeal and affirmed the Court of Appeal’s order for re-arrest and arraignment. It held that the order was constitutional, did not violate the protection against double jeopardy, and properly considered the guiding factors for retrial.
Significance
This decision:
- Clarifies that appellate courts may order retrials under the constitutional exception to double jeopardy without expressly declaring prior proceedings null and void.
- Reaffirms the Abodundun factors as essential safeguards ensuring retrial orders serve justice and do not oppress the accused.
- Strengthens judicial discretion in correcting miscarriages of justice by ordering de novo hearings when trial irregularities undermine fair adjudication.
- Provides guidance on interpreting section 36(9) CFRN, balancing individual rights against the public interest in fair criminal processes.