THE PRINCIPLE OF DOUBLE JEOPARDY UNDER NIGERIAN CRIMINAL LAW

THE PRINCIPLE OF DOUBLE JEOPARDY UNDER NIGERIAN CRIMINAL LAW

Odebamike Mary Oluwabunmi

University of Lagos

 

ABSTRACT 

This article examines the principle of double jeopardy under Nigerian criminal law, which is provided for under S.36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It discusses the concept, its legal framework, rationale, and exceptions. The paper stresses that the principle helps prevent the trial of an individual for the same offense arising from the same facts more than once thereby protecting individuals from oppression and abuse of state powers. By examining statutory provisions and case laws, the paper explains the defenses of autrefois acquit and autrefois convict and their role in upholding the finality of judicial decisions. It also identifies instances where the principle will not apply, such as where the facts are different, where civil and criminal actions are instituted simultaneously, or where a superior court orders a retrial. The paper concludes that while the rule against double jeopardy upholds individual rights and the integrity of the justice system, there must be a balance with the need to ensure that justice is achieved.

 

 

 

 

 

 

 

 

 

 

 

 

 

INTRODUCTION 

The right to fair hearing is one of the plethora of fundamental human rights guaranteed under the Constitution. Fair hearing means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. S.36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), hereinafter referred to as CFRN, 1999, makes provisions for sub-rights under subsections 1 to 12 to ensure that proceedings are just and fair, one of which is the right against double jeopardy. This paper aims to discuss the concept of double jeopardy, the legal framework governing this principle in Nigeria, the rationale for the principle and its exceptions.

 

DOUBLE JEOPARDY IN NIGERIA

By virtue of S.36(9) of the CFRN, 1999, no person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offense and either convicted or acquitted shall again be tried for that offense or for a criminal offense having the same ingredients as that offense save upon the order of a superior court. The court in Romrig (Nig.) Ltd. v. F.R.N.stated that the plea of double jeopardy presupposes that no man shall be vexed twice on the same facts and for the same offense. This implies that once a man has faced the court of law for an offense and has been convicted or acquitted by the court, such a man cannot be charged to court on the same facts and offense on a later date. The court further provided the conditions that can ground a plea of double jeopardy. The conditions to be met by a party before he can claim double jeopardy are: He must have been earlier tried by a competent court of law, the facts of the earlier matter and the new one must be the same and lastly, the earlier trial must have resulted either in the discharge, acquittal or some other form of punishment of the accused person.

 

Where a person is charged and acquitted for lack of evidence, and evidence later comes to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed the defense of autrefois acquit which translates as “previously acquitted”. This means such a person can plead before the court that he has been charged and acquitted on the same matter and hence, should not be charged again. Similarly, if he is convicted, even though he is left off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defense of autrefois convict which translates as “previously convicted”. This simply means that a person who is charged for an offense on certain facts and is convicted but new evidence later shows that the offense was more serious and the punishment given was too light, such a person cannot be charged again for the more serious offense that was uncovered.

 

The International Covenant on Civil and Political Rights (ICCPR) of which Nigeria is a signatory, also recognizes under Article 14 (7), the principle of double jeopardy. It states that “No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." 

 

The principle of double jeopardy ensures that individuals are protected from continuous or repeated prosecution. It protects against abuse of state power. Without this principle, the state could continually prosecute an individual until a conviction is eventually secured, leading to oppression and injustice. The principle of double jeopardy also helps to uphold judicial decisions and protect defendants from the costs of multiple proceedings. 

 

EXCEPTIONS 

Every general rule has an exception. There are several instances where the principle of double jeopardy will be inapplicable. One of the exceptions to the right against double jeopardy is provided for under the very same section that guarantees the right. S.36(9) of CFRN, 1999 uses the words “save upon the order of a superior court”. This means ordinarily, a person who has been acquitted or convicted for an offense cannot be tried again for that same offense, however, if a superior court orders that the person be retried, for instance, in a situation where the lower court lacked jurisdiction on the matter, such a person will not be able to rely on the defense of autrefois acquit or autrefois convict. 

 

In the case of Agwasim v. Ejivumerwerhaye, The court held that the principle of double jeopardy cannot apply where a person is proceeded against for a tortious liability after he has been found guilty of a criminal offense based on the same set of facts. For example, if Mr. A assaults Mr. B, he will be charged with the offense of assault. This does not stop Mr. B from suing him for the tort of assault and battery. Although both actions are brought on the same fact, Mr. A cannot rely on the defense of autrefois acquit or autrefois convict as one is a criminal action and the other is a civil action. The major aim of the right against double jeopardy is to prevent a person from being tried twice on the same facts in a criminal action.

 

Another exception to the right against double jeopardy is available where a person is charged for a similar or the same offense but with different facts. For instance, Mr. A stole a bag of rice from Mr. B’s shop. He was caught, charged for the offense of stealing and then acquitted for lack of evidence. Mr.A then found out that Mr. B stole another bag of rice a week after his acquittal and reported the matter to the police. When he is brought before the court for the offense of stealing, Mr. B cannot plead the defense of autrefois acquit because he was previously acquitted for the offense of stealing. This is because although it is the same crime, the same victim and the same thing that was stolen, it happened on different days, meaning the facts of the two cases are different.

 

The ICCPR provision on double jeopardy does not apply to prosecutions by two different sovereigns, unless the relevant extradition treaty expresses a prohibition. This means if a person commits a crime that affects two different countries, both countries can charge the person for the crime under their different criminal law. An exception to this exception occurs where there is an agreement or treaty between the two countries that provides otherwise.

 

 

CONCLUSION 

This paper has examined the principle of double jeopardy under Nigerian criminal law, highlighting what it entails, the rationale, and its exceptions. It established that the principle serves as a protection against abuse of state power, ensuring that no person is tried more than once for the same offense based on the same facts. However, some exceptions that render the principle inapplicable were also established. Where the facts are different, where both civil and criminal actions are instituted against an individual or where a superior court orders a retrial, one will not be able to rely on the defense of autrefois acquit or autrefois convict. While the principle of double jeopardy protects individual rights, it also recognizes that there is a need to balance this with ensuring that justice is not only done but seen to be done.