ESEU V. PEOPLE OF LAGOS STATE (2024) 11 NWLR (PT. 1948) 95
ON PRINCIPLES GOVERNING ORDER OF RE-TRIAL IN CRIMINAL TRIALS
A re-trial order should not be used as a tool to assist the prosecution that has failed to prove its case. In the instant case, having found that after a full-scale trial the respondent was unable to prove its case against the appellant, the decision of the Court of Appeal ordering a retrial would have resulted in subjecting the appellant to another harrowing experience of a second criminal trial. Furthermore, the circumstances of the case would render it oppressive to try the appellant a second time and allow the respondent an opportunity to fine-tune its case and get a ‘second bite at the cherry’. It would also occasion a greater miscarriage of justice. Moreover, it might be difficult to secure the attendance of PW2, a witness who refused to make himself available during the original trial, despite the issuance of a bench warrant against him, about fourteen years thereafter. The difficulty in finding witnesses to testify has always also been a factor that has been considered by the court in some cases in deciding whether or not to order a retrial.[Comptroller General of Customs v. Gusau (2017) 18NWLR (Pt. 1598) 353; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Ladoja v. Ajimobi(2016) 10 NWLR (Pt. 1519) 87; Umaru v. State (2009)8 NWLR (Pt. 1142) 134; Adeoye v. State (1999) 6NWLR (Pt. 605) 74 referred to.] (Pp. 118-119, paras.H-F)