THE PRINCIPLE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT: ITS APPLICATION AND LIMITATION BY IBRAHIM MUHAMMAD USMAN

The principle of autrefois acquit means ‘formerly acquitted' and autrefois convict means 'formerly convicted’ respectively in French. It is, however, a principle of common law that is applicable in the Nigerian legal system by virtue of various High court laws and sections 223 and 224 of the Criminal procedure Code. This defense is predicated upon the legal reasoning that anybody who shows that he has been convicted or acquitted by a court of competent jurisdiction or a tribunal shall not be tried again for an offence with same ingredients, this principle is captured in the Stroud's Judicial  Dictionary 3rd Edition, page 242. It states:

     “the plea of autrefois acquit is founded on this maxim that a man shall not be brought into danger of his life for one and same offence more than once”.

Similarly, Article 14(7) of the International Covenant on Civil and Political Rights enshrines autrefois clearly as follows:

      "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of such country"

This principle has also been enshrined in section  36 (9) and (10) of the Nigerian 1999 constitution as amended.

36(9) - No person who shows that he has been tried by any court of competent jurisdiction 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.

36 (10) - No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.

 

         EXCEPTIONS TO THE PRINCIPLE.

As the constitution has rightly outlined in the wordings of section 36 (9) “..save upon the order of a superior court” , it is clear that the exception as to when a person can not be retried on the same offense is upon an order of a superior court. It is presumed that all lawyers know the law but, the smart lawyers know the ‘exception’ to the laws. There are certain grounds on which the superior courts may order for retrial of a same offense that has earlier been tried, some of which includes:

1. When the decision of the lower court was reached without following the due process of the law, the court in REGINA VS. KENT JUSTICES 1952 36 CR. AP. R 23 that:

   "...when a trial Court's decision was set aside on appeal due to lack of following the proper procedure, a re-trial can be ordered and autrefois convict can not be pleaded because the accused was never technically in peril"

2. When the record of the judgement of the lower court which led to either conviction or acquittal has been lost and all efforts to finding it proves abortive, the court held that:

          "The position of the law is that where all diligent efforts, to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial." See Haastrop (W.A) Ltd v. Welding Engineering Co. (Nig.) Ltd (1996) 9 NWLR (Pt.470) page 92. First Bank of Nigeria Plc v. May Medical and Diagnostic (2001) 27 WRN 162. Uwecha v, Obi (1973) 2 SC 1 at 6 PER ABOKI, J.C.A. (P. 42, Paras. C-E)

3.Where an error of a lower court cannot be corrected by an appellate court based on the evidence on the record without causing injury to any of the parties, the court on this position, held inter alia that:

      "It is trite that where an error of a lower Court can not be corrected by an appellate Court based on the evidence on the record without injustice to either of the parties, an order of the retrial is most appropriate. See: Fatoyinbo v. Williams (1956) SCNLR 274 Igwe v. Kalu (2002) 4 NWLR (Pt.761) page 678i Sanusi v. Ameyogilu (1992) 4 NWLR (Pt. 237) page 527; Okoye v. Kpajie (1973) 6 SC 176.

The conditions under which a Court can order for a fresh trial in a criminal matter has been enunciated in the case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 as follows: "(a). that there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, (b). that, leaving aside the error or irregularity, the evidence taken as a whole discloses as substantial case against the appellant; (c). that there are no such special circumstances as would rendered it oppressive to put the appellant on trial a second time; (d), that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and (e). that to refuse an order for a retrial would occasioned a greater miscarriage of justice than to grant it".

In Moshood v. State (2004) 14 NWLR (Pt. 893) page 422 at 428, the Court held that: "A retrial order is made when there had been an error in law of an irregularity in the procedure that does not make the trial a nullity nor create a miscarriage of justice. The Court must be satisfied that: (a) The evidence taken may otherwise disclose the commission of the offence substantially, (b). there is no special circumstance that wilt render it oppressive to put the accused back on trial and that to refuse a retrial would result in a greater .

In conclusion, the entire criminal justice system is predicated on the observance of the rule of natural justice based on the international standard and it have it that no one shall be vexed twice or punished twice, especially by court(s) of coordinate jurisdiction but such a case can only be appealed on reasonable grounds, and the appeal is either resulting in affirming the decision of the lower court or setting it aside on reasonable grounds which the court finds.

 

The author can be contacted via:

Imuhammadusman66@gmail.com, or

08145101965.