When a judge recuses himself/herself midway through a trial and a new judge is assigned, Nigerian law especially under the Administration of Criminal Justice Act 2015 or equivalent state laws strongly discourages or limits full trials de novo starting afresh) in criminal cases to avoid delays. However, in practice judge changes often resulted in partial or full restarts, including the accused taking a fresh plea before the new judge.
Taking a fresh plea effectively marks the beginning of a new arraignment before the new judge. Courts and legal commentators have held that:
A fresh plea, commencement of hearing under a repealed substantive law renders the trial a nullity if the old law is no longer in force, even with a saving clause, because the saving typically applies only to genuine continuations of the original proceedings, not a fresh or de novo trial.
The saving clause does not “revive” a dead law for a new trial or fresh plea after repeal.
This position is reinforced in high-profile cases and legal commentary, e.g., arguments around repealed terrorism laws, where it is asserted that “there is no single instance… where a criminal trial, conviction, or plea was sustained under a repealed law” without the old law being expressly in force at the time of the fresh proceedings.
So, where the trial becomes de novo, i.e., fresh plea taken before a new judge, after repeal the case cannot lawfully continue under the repealed law. The proper course is for the prosecution to prefer a fresh charge under the new/replacement law, if the conduct still constitutes an offence under it.
Continuing under the repealed law after a fresh plea would violate Section 36(12) of the Constitution and render the entire proceedings, including any eventual conviction, void ab initio.
If the new law decriminalises the conduct or prescribes a lighter penalty, the accused benefits from that. It is called the principle of lenity.
The saving clause protects only seamless continuations before the same judge or without restarting the plea/evidentiary process; it does not extend to a restarted trial.
This ensures compliance with constitutional fairness and the rule that criminal liability must exist in a living law at the time of trial.
