DOUBLE JEOPARDY IN NIGERIA: JUSTICE SECURED OR JUSTICE DENIED? Examining The Balance Between Finality and Truth in Nigeria’s Criminal Justice System -By Oluwaleye Adedoyin Grace

In ijebu-ode town somewhere in Ogun state, where the harmattan wind sang through rustling mango trees and the rhythm of life echoed in pounding pestles and distant laughter, justice was a sacred thing. The elders said that once the talking drum of justice sounded its final beat, silence must follow, not just from the accuser, but from the land itself.

But for Mama Bisola, silence never came. Her son, Jide, was murdered on the eve of his wedding, his blood staining the red earth behind the family’s cassava farm. The entire village mourned. A suspect, Adewale — Jide’s childhood friend was brought to court, and after months of trial, he was discharged and acquitted. Lack of evidence, the court said. And so, the drums were silenced.

But two years later, as the village prepared for the Ojude Oba Festival, a young boy playing under a tree close to mama Bisola’s farm found something buried: Jide’s missing phone — still holding a final voice note. In it, Jide whispered Adewale’s name with his dying breath.

The news swept through Ogun state like wildfire. Rage returned. So did grief. But the law had spoken. Adewale could not be tried again — not for the same crime.

Mama Bisola went to the elders. She went to the police. She went to God.

But everywhere she turned, she met the same answer: “Double jeopardy. The matter is closed.”

Yet in the market square, whispers stirred. In the church, silence grew heavy. And in the heart of the nation, a question rose like dust in the harmattan:

Should justice end with the first verdict — even when truth digs itself from the ground?

When new evidence surfaces after a verdict, should the law remain silent? Should justice be denied?

Find out in this article…

INTRODUCTION

In jurisprudence, double jeopardy is a procedural defense that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction . Double jeopardy evolved from ancient prohibitions against repeated trials and punishments to a fundamental criminal justice principle protecting individual liberty, firmly established in common law by the post-medieval period and constitutionally enshrined in the U.S. and other legal systems

This article critically examines the doctrine of double jeopardy in Nigeria, questioning whether the strict finality of criminal trials always serves the end to justice. With advances in forensic technology and recurring cases of wrongful acquittals, this piece examines the feasibility and necessity of reform, while weighing individual rights against the pursuit of truth.

This brings us to the question, what exactly is double jeopardy and why does it matter in the Nigeria justice system?

HISTORY OF DOUBLE JEOPARDY

The history of the double jeopardy principle is long and rooted in ancient legal traditions, evolving significantly over millennia. The principle can be traced back to the Code of Hammurabi (19th century BCE), where Law 5 prohibited judges from changing judgments once rendered, reflecting early recognition against repeated trials or punishments for the same case

During the early medieval period (5th-11th centuries), punishments for second convictions were severe, often death or mutilation, indicating a harsher approach before protections developed . The principle was influenced by medieval canon law, notably in the 12th century during the power struggles between King Henry II and Thomas à Becket, where canon law prohibited trying a person twice for the same offense .

Over centuries, English common law further developed and firmly established this protection as a fundamental right. Nigeria’s legal system, deeply influenced by English common law due to its colonial history, has incorporated this principle into its Constitution. Specifically, Section 36(9) of the 1999 Nigerian Constitution enshrines the prohibition against trying a person twice for the same crime, reflecting this long-standing legal tradition. This constitutional protection aims to balance the rights of the accused with the need for finality in criminal justice, continuing the historical commitment to fairness and legal certainty.

PRINCIPLE OF DOUBLE JEOPARDY IN NIGERIA

In Nigeria, the principle of double jeopardy is constitutionally protected under Section 36(9) of the 1999 Constitution, which states that no person who has been tried by a court of competent jurisdiction for a criminal offence and either convicted or acquitted shall be tried again for the same offence or a criminal offence with the same ingredients, except upon the order of a superior court.

Notably, the protection applies where the following are meticulously observed:

• Only after a judicial trial and final judgment either conviction or acquittal has been rendered;

• Administrative actions like pardons do not invoke double jeopardy protections

• The principle prevents the state from retrying an individual to avoid harassment, embarrassment, or repeated anxiety from multiple prosecutions for the same offence .

• There is a constitutional exception allowing retrial if a superior court orders it, which means double jeopardy is not absolute

In Nigeria, new evidence in closed cases can only be introduced under very limited and controlled circumstances, primarily during appeals. The law allows appellate courts to admit fresh, new, or additional evidence after a trial, but this is not automatic and is granted sparingly at the court’s discretion to serve substantial justice .

Let’s Consider the case of Mallam Audu of kaduna state, who was accused of theft in Zaria town. After a lengthy trial, he was acquitted due to lack of evidence. Years later, new witnesses came forward, but the law barred a retrial. While Mr. Audu was relieved, the victim’s family felt justice was never served. This tension between protecting the innocent and delivering justice lies at the heart of double jeopardy.

HISTORICAL CASES IN NIGERIA WHERE DOUBLE JEOPARDY WAS CHALLENGED

there have been notable historical cases in Nigeria where the principle of double jeopardy was challenged and judicially examined.

In the landmark case of Nigerian Army v Aminun Kano (2010) LPELR-2013(SC)

This is a landmark Supreme Court case often cited in discussions of double jeopardy in Nigeria. In this case, the court clarified that double jeopardy means being tried twice for the same offence. The court held that Aminu Kano was not subjected to double jeopardy because he had not been previously tried, convicted, or acquitted for the same offence before his trial by the General Court Martial. The case emphasized that for double jeopardy to apply, there must have been a prior trial on the same offence by a competent court

FRN V. KANAYO OKAFOR (2012) LPELR-9347(CA)

In this case, the Court of Appeal affirmed that once a defendant is convicted or acquitted by a court of competent jurisdiction, any subsequent prosecution for the same offence is barred. The court emphasized that the plea of autrefois acquit or autrefois convict can only succeed where:

1. A previous trial occurred,

2. Before a court with jurisdiction,

3. Resulted in a final judgment (conviction or acquittal),

4. And the new charge is for the same or substantially the same offence.

EMEKA V. STATE (2001) 14 NWLR (PT. 734) 666

Here, the Supreme Court clarified that recharging a person on the same facts, even under a different legal label, violates the protection against double jeopardy. The substance of the offence, not the title, was key.

This case firmly established that manipulating the framing of charges cannot be used to bypass the constitutional safeguard of Section 36(9).

IKOMI V. THE STATE (1986) 3 NWLR (PT. 28) 340

In Ikomi, the Supreme Court held that retrials are not prohibited when the original proceedings ended in a mistrial or were set aside on appeal. The double jeopardy clause only attaches when there is a conclusive trial outcome—that is, a valid acquittal or conviction.

Other cases such as AGAGARAGA v. FRN (2006) 17 NWLR (PT 1009) 345 and ALI v. FRN (2016) LPELR-41527(CA) also dealt with the application of Section 36(9) of the 1999 Constitution, which protects against double jeopardy. These cases confirmed that once a person has been tried and either convicted or acquitted, they cannot be tried again for the same offence or one with the same ingredients, except upon the order of a superior court

However, challenges arise in practice, especially with law enforcement agencies like the EFCC sometimes filing duplicate charges in different courts, which critics argue violates the double jeopardy rule.

KEY CONDITIONS FOR ADMITTING NEW EVIDENCE ON APPEAL

1. The evidence did not exist or could not have been obtained with reasonable diligence during the trial.

2. The new evidence must be credible, material, weighty, and relevant to the case.

3. It must not alter or reshape the original case in a way that would cause injustice to the other party.

4. The party seeking to introduce the new evidence must apply formally to the appellate court before the appeal hearing, showing special grounds for its admission

Courts rarely grant such applications because the public policy favors finality in litigation to avoid endless re-litigation. When new evidence is admitted, it is typically to prevent a miscarriage of justice, not to retry or reopen the case as if starting anew. If a trial court made an improper evaluation of evidence, appellate courts may order a retrial to address the miscarriage of justice, but this is different from simply reopening a closed case based on new evidence.   Nigeria handles new evidence in closed cases primarily through the appellate process, with strict requirements and judicial discretion to balance justice and the need for finality

DOUBLE JEOPARDY IN OTHER COUNTRIES

Several countries handle the double jeopardy principle differently from Nigeria, reflecting diverse legal traditions and policy choices.

1. In the United States, the Fifth Amendment protects against double jeopardy but includes notable exceptions. For example, retrials are allowed after mistrials or hung juries, and under the “dual sovereignty” doctrine, a person can be tried separately by state and federal courts for the same act because they are considered different sovereigns. This means multiple prosecutions are possible in distinct jurisdictions, unlike Nigeria’s stricter rule.

2. In the United Kingdom, the Criminal Justice Act 2003 modified the common law double jeopardy rule by allowing retrials if “new and compelling evidence” emerges after an acquittal or if the original acquittal was tainted by fraud or perjury. This creates a balance between finality and correcting miscarriages of justice, which contrasts with Nigeria’s near-absolute constitutional protection .

R V. DOBSON AND NORRIS [2012] EWCA CRIM 281 (Stephen Lawrence Case, UK): Conviction achieved after retrial enabled by new forensic evidence. The UK reformed its laws in response to this injustice.

3. Ghana has constitutional protection against double jeopardy similar to Nigeria (Article 19(7) of the 1992 Constitution), but judicial interpretations and customary law sometimes allow limited flexibility. Retrials may be permitted in exceptional circumstances, reflecting a somewhat more adaptable approach than Nigeria’s strict prohibition

4. Australia also allows exceptions to double jeopardy protections in serious cases, permitting retrials when fresh and compelling evidence is found, especially in grave offences like murder. This approach is more flexible than Nigeria’s and aims to balance individual rights with public interest in justice.

5. Canada and South Africa, have also introduced statutory exceptions allowing retrials in exceptional cases involving new evidence or procedural irregularities, differing from Nigeria’s rigid constitutional stance.

Nevertheless, while Nigeria’s double jeopardy rule is constitutionally strict, emphasizing finality and protection from repeated prosecutions, many other countries adopt a more flexible approach. They allow retrials in exceptional cases involving new, compelling evidence or procedural taint to better balance justice and individual rights

CHALLENGES: WHY RETRIALS ARE DIFFICULT

1. Constitutional protection: Section 36(9) of the 1999 Constitution protects against double jeopardy, preventing retrials once a person has been tried and acquitted or convicted, except on order of a superior court.

2. Judicial reluctance: Superior courts are cautious in granting retrials to avoid harassment, prolonged litigation, and injustice to the accused.

3. Considerations by courts: Courts weigh factors such as whether the original trial was fair, if there was substantial irregularity, the credibility and materiality of new evidence, the length of time elapsed, and whether retrial would prejudice either party or prolong litigation unnecessarily (see MAFIMISEBI v ENUWA (2007) LPELR-9031 (CA) , and recent 2024 cases like FRN V AKAEZE (unreported)  and ESEU V PEOPLE OF LAGOS STATE (unreported)

4. Trial de novo: When a judge retires, is transferred, or elevated, Nigerian courts often order a trial de novo (a fresh trial), but this is procedural and not related to reopening a concluded case on new evidence.

HOW THE SYSTEM BALANCES JUSTICE AND FINALITY

1. Courts aim to ensure substantial justice rather than relying on technicalities. For example, in STATE v. SANI ABDULAHI (2018) LPELR-43828(SC), the Supreme Court emphasized the importance of proper procedure in trial within trial to protect fair hearing rights

2. The length of time since the original trial and the potential hardship to the accused are important factors. Prolonged delays or difficulty in procuring witnesses weigh against retrial

3. Parties are free to reframe or restructure their case on retrial, but courts remain mindful of the need to avoid endless litigation.

IS DOUBLE JEOPARDY JUSTICE DENIED?

It can feel like “justice denied” when new, potentially compelling evidence surfaces after an acquittal. However, the law prioritizes protecting individuals from state overreach and unfair repeated prosecutions. This is a deliberate balance. the system accepts that some cases may remain unresolved rather than risk violating fundamental rights.

THE RATIONALITY OF DOUBLE JEOPARDY

Lawful: Absolutely. It is constitutionally mandated and consistent with international human rights principles protecting against double jeopardy.

Rational: Yes, because it prevents abuse of the legal system, protects the accused’s right to finality, and maintains public confidence in the justice system. The doctrine is rational because it:

1. Prevents abuse of the legal system by stopping the government from repeatedly prosecuting an individual until a conviction is secured.

2. Protects the accused’s right to finality, sparing them the psychological, financial, and social burdens of multiple trials.

3. Maintains public confidence in the justice system by ensuring that verdicts are respected and that the state cannot arbitrarily retry cases.

4. While it may mean some cases remain unresolved if new evidence appears post-acquittal, this is a deliberate trade-off to uphold fundamental rights and prevent state harassment

RETHINKING DOUBLE JEOPARDY IN THE FACE OF NEW EVIDENCE

1. Addressing “Justice Denied” Situations: Currently, if new, compelling evidence emerges after an acquittal-especially in serious crimes like murder-the law makes it extremely difficult to reopen the case. This can lead to public frustration and perceptions that justice has been denied.

2. Learning from Other Jurisdictions: Countries like the UK, Australia, and the US have introduced exceptions allowing retrials in exceptional circumstances, such as when new and compelling evidence surfaces or when the original trial was tainted by fraud or perjury. These reforms balance finality with the need to correct miscarriages of justice.

3. Balancing Rights and Public Interest: Reform could create a framework that protects individuals from harassment and abuse while allowing the justice system to respond fairly to new evidence in serious cases.

4. Justice for Victims: Reopening cases could bring long-sought closure.

5. Public Confidence: The legal system must evolve with science.

6. Selective Application: Only for serious offences (e.g., murder, terrorism) with judicial oversight.

7. Restate the central debate: Should justice end at acquittal—even when truth surfaces later?

MODERN INTERPRETATIONS

1. The principle has been subject to judicial interpretation and modification, especially in common law countries, balancing individual liberty with public interest in justice.

2. Cases like Green v. United States and US v. Gamble (2019) reflect ongoing legal debates about the scope and application of double jeopardy in modern jurisdictions .

POSSIBLE REFORMS TOWARDS A BALANCED APPROACH

1. Reform advocates suggest clearer statutory provisions to allow retrials in exceptional cases involving compelling new evidence, especially in serious offences like murder. However, any relaxation must preserve the constitutional protection against double jeopardy to avoid abuse.

2. Improving investigative processes and evidence preservation can reduce the need for retrials.

3. Courts may develop clearer guidelines on when superior courts should exercise their discretion to order retrials, balancing justice with finality.

4. Introducing limited exceptions to the double jeopardy rule for serious offences when fresh, credible, and compelling evidence arises.

5. Maintaining the core constitutional protection to avoid weakening individual rights. It must help in preserving Fundamental Rights. Any reform must safeguard the constitutional prohibition against double jeopardy to avoid government harassment and protect individuals’ rights to certainty and closure

Imagine a justice system that protects the innocent from harassment but also allows victims’ families to seek closure when new evidence emerges. This balance was the driving force behind reforms in Australia, where retrials are permitted in serious cases with compelling new evidence.

CONCLUSION

Nigeria’s constitutional protection against double jeopardy is rooted in a commitment to fairness, legal certainty, and the protection of individual rights against state overreach. However, the evolving nature of justice_ particularly in cases where compelling new evidence emerges after an acquittal calls for a careful re-examination of the absolute nature of this rule. By learning from jurisdictions like the UK, US, and Australia, Nigeria can strike a more balanced approach. One that respects finality but does not turn a blind eye to truth. Any reform must be deliberate, judicially supervised, and limited to serious crimes, ensuring that justice is not only procedurally sound but also substantively just.

Ultimately, the goal should not be to erode constitutional rights but to enrich them by building a legal system that delivers both protection for the innocent and accountability for the guilty even when that requires revisiting the past. If the above reforms are put in place, there will be hope for Mama Bisola and others like her whom the system has failed.

Oluwaleye Adedoyin Grace writes from Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State.

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