The facts based thereon are not in the record of appeal. They however represent a factual situation which cannot be ignored. The factual situation is that the learned trial Judge Bode-Rhodes-Vivour J (as he then was) heard the case-up to the end of the prosecution's case. Upon the no case submission presented by learned counsel for each of the two accused person, he decided that there is prima facie case against each of the Appellant and the other accused person and called on each of them to defend himself. Meanwhile, when the appeal was pending, the learned trial Judge was appointed a Justice of the Court of Appeal and has since resumed there.

Consequent thereupon, the case has been reassigned to another Judge, Ogunmekan J for trial denovo which, according to the learned Solicitor-General, has since begun. The submission of the learned Solicitor-General is that in the face of the trial before Ogunmekan J, all the proceedings before Hon. Justice Rhodes-Vivour including the no case submission and the Ruling thereon have abated and therefore that the appeal before this Court is a mere academic exercise having been overtaken by events. The learned Solicitor-General cited GMBH & anor v. Al-Shark Contracting and Trading Co. Ltd. (2001) 3 WRN 22 at 29; Global Transport Oceanic S.A. & anor v. Free Enterprises Nigeria Ltd (2001) 12 WRN 136 at 152; Iweka v. Scoa (2000) 3S.C21 at 29 on the meaning of trial denovo and on the duty of Courts to refrain from embarking on academic exercise.

Ocholi James in the Appellant's Reply Brief argued that the issue of this appeal being a mere academic exercise does not emanate from the record of appeal and relied on Engineer Raphael Jimoh & ors v. Chief Rex Kola Olawoye (2003) 10 NWLR (Pt. 828) 307 at 332.

On appeal, the learned justice stated thus ‘I have carefully considered the submission of both counsel and it appears to me that both of them missed the little but tricky point being raised in this objection. It does not matter whether the Appellant is already being tried denovo or shall be subject to trial denovo by another Judge. The question is whether, in the circumstance, the appeal is useless for all practical purpose. The totality of the evidence of the prosecution up to the end of its case is contained in the record. The address of counsel in support of the no case submission is also in the record.