March 29, 2024

Fallacy of Double Jeopardy By Olokooba AbdulWasiu

Fallacy of Double Jeopardy By Olokooba AbdulWasiu

In its simplest meaning, the phrase ‘Double Jeopardy’ can be seen as a right to only one trial for an offence.

And with legal maxims, it can be expressed as either Autre Fois Acquit (that he has already been acquitted for the offence he is standing trial for), or Autre Fois Convict (that he has already been convicted for the offence he is stranding trial for). 1 Whereas, in a technical context, the phrase is viewed as a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction. It is a prevention for two adjudications for one offence.

That is; If a person robs a bank, that individual cannot twice be tried for robbery. Nor can one be tried for two different crimes based upon the same conduct, unless the two crimes are defined so as to prohibit conduct of significantly different kinds.

Thus, one cannot be tried for both murder and manslaughter for the same killing. But, can be tried for both murder and robbery if the murder arose out of the robbery.

Without any doubt, this legal notion is quite applicable in the Nigeria legal system. For instance, per Idigbe JSC(as he then was), applied and affirmed it in the case of Rabiu v. The State [1980] LPELR-SC. 49/1980, while holding the appeal of the appellant.

The relevant provision on double jeopardy in our 1999 Constitution is Section 36 (9), which reads: “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.” See also section 181 of CPA, section 223 of CPC and section 173 of ACJA 2015, they also make provisions for same.

And in practice, it is of basic point to know that the defence should be raised, in form of objection, immediately after the read of the charge before the plea is taken. But, as decided in the case of State v. Duke [2003] 5 NWLR (Pt.813)394, it was held otherwise therein that the defence can be raised anytime during the trial before judgement is delivered, and if plea has been taken, it will be withdrawn.

As a matter of law –with regards to provision of section 36 (9) of CFRN of 1999, 2011 as amended, it is truism that for a person to raise the defence of double jeopardy, he/she must have been tried by a competent court for a criminal offence and either convicted or acquitted. It follows, therefore, that for double jeopardy to exist, there must be a conviction or an acquittal by a court or tribunal and the offence for which the person is subsequently arraigned must have the same ingredients as the previous one.

Even at that, it will be a fallacious fallacy to think that the defence of double jeopardy is automatic. No. It is not a prima facie defence like others, such as insanity.

As allowed otherwise by the law, a superior court or an appellate court can actually order the retrial of a person again despite previous conviction or acquittal of him by a competent court; which, ordinarily, will avail him the opportunity to raise bar plea for double jeopardy.

The supreme court, in the case of FEDERAL REPUBLIC OF NIGERIA v. NASIRU YAHAYA (2019) LPELR-46379(SC), upheld the decision of the court of appeal, ordering the retrial of the accused after he has successfully shown to the court that he has been acquitted of the offence by the same trial court. And on that basis, he is entitled to right against double jeopardy. But, both S.19&23 Court of Appeal ACT and S.26 Supreme Court ACT2allow the duo to make an order of retrial of an accused, even though he has once been convicted or acquitted for that same offence.

This is beyond disputation that the combined effect of the above provisions has made it obvious that; the defence of double jeopardy is not automatic. It can be surpassed by superior court with an order of retrial. And as such, it is a fallacy to call it an absolute defence in law.

Olokooba is a member of Kabiru Tanimu Turaki Chamber, Faculty of Law, Usmanu DanFodio University, Sokoto.

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