Iboko & Ors. V The Commissioner Of Police (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

This appeal was dismissed on the 17th June at the hearing for reasons which will now be given. The appellants were convicted by the magistrate at Abakaliki of certain offences, and appealed to the High Court, and have now appealed to the Supreme Court. Two of their grounds of appeal to the High Court are that the magistrate’s judgment is:-

Altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.” Phil-Ebosie, J. says that, in light of Adi v. The Queen, 15 WA. C.A. 6, those are not proper grounds of appeal; that in criminal cases the proper ground is that- “the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence”:- and not ‘having regard to the weight of the evidence’, the reason being that in a criminal appeal the point is not the preponderance of evidence on one side which outweighs the evidence on the other side; and that this view was held in Aladesuru v. The Queen [1956] A.C. 49. In regard to the argument that the grounds as framed are authorised by rule 9 in Order 55 of the High Court Rules (E.R.), the learned judge held that the W.A.C.A. decision should prevail, and he called the attention of the Rules Committee to this error which offended against well established principles of the law.

The appellants object that the learned judge erred in his view that the WA.C.A. decision prevailed over rule 9 in Order 55, which authorises this ground of appeal, namely:-

“(h) That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

Their learned counsel agrees that s.22 (1) (d) of the Interpretation Ordinance (cap. 89 of the 1958 Laws of the Federation etc.) applies; it provides that:-

“(d) no order, regulation or rule of court shall be inconsistent with the provisions of any Ordinance or Law in force in any part of Nigeria to which the Order, regulation or rule of court applies.”

Thus the first question is whether the provision of the rule is inconsistent with the High Court Law (E.R.), under which the rules were made. That Law provides in s.99 (1) for the making of rules regulating sundry matters, one of which is:

“(i) the form and procedure relating to civil and criminal appeals to the Court.” Provisions in the rules for a memorandum of the grounds of appeal is a matter of procedure, but the grounds which are authorised by the rules must keep within the grounds on which the court may act; and this sends one to section 38(1) of the High Court Law, which provides that

“On an appeal from conviction in a Magistrate’s Court, the Court may:

(a) Maintain the conviction and dismiss the appeal; or

(b) allow the appeal and set the conviction aside if it appears to the Court that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable, or that the conviction should be set aside on the ground of a wrong decision on any question of law, or on the ground that there was a substantial miscarriage of Justice:

Provided that the Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred;” (The rest is irrelevant here).

Thus, in so far as the appeal relates to the facts, the ground which may be advanced is that “having regard to the evidence adduced” the conviction was “unreasonable”. The rule in question has the words “unwarranted, unreasonable and cannot be supported having regard to the weight of evidence”, which go beyond the wording of section 38(1)(b) of the High Court Law, and that is a flaw in the rule.