Abdu Romo V Gwandu Native Authority (1966)

LawGlobal-Hub Lead Judgment Report

ONYEAMA J.S.C.

We dismissed this appeal on the 23rd of June, 1966, and now give our reasons.

The appellant was convicted of culpable homicide punishable with death in the Emir of Gwandu’s Court and was on the 4th of August, 1965, sentenced to death; but the blood relative of the deceased in accordance with section 393 of the Criminal Procedure Code indicated that he had pardoned the appellant and did not wish the death sentence carried out.

The facts, which were not disputed, are that the appellant was engaged to work in the farm of one Garba Ganga. Later in the day, Garba Ganga sent his younger brother Amadu aged about ten years with some porridge for the appellant. The boy did not return, and in the evening a search party found him lying dead in the farm with three wounds on his head. The appellant was nowhere to be found.

He was seen later that night in the village of Dogondaji and arrested and taken to the Alkali of Jega; before the Alkali the appellant admitted that he had killed Amadu but said the killing was accidental. At his trial the appellant said that the deceased brought porridge to him at the farm, and that while he was in the farm he (the deceased) struck him twice with a stick; he said he chased the deceased and caught up with him; he said he struck the deceased on the neck with a hoe and the deceased fell; he struck him another blow with the hoe on the left side of the head and near the eye; when he saw the boy was unconscious he ran away leaving the hoe behind.

The Emir’s Court, finding that the appellant acted deliberately and without any sudden provocation and acted “mercilessly to a boy of 10,” had no difficulty in convicting him of culpable homicide punishable under section 221 (b) of the Penal Code.

The accused appealed to the High Court where the main ground was that the charge against the appellant had not been properly drafted. The High Court considered this and other grounds argued by counsel for the appellant and came to the conclusion that the appeal should be dismissed. Before us, the grounds of appeal were complaints that the evidence led was not enough to warrant conviction and that “the sentence is erroneous, too severe and unjustifiable having regard to the weight of the evidence.”

Counsel assigned to the appellant could find nothing to urge in favour of the appellant, but we invited argument on whether the appellant could be convicted of culpable homicide punishable with death in view of the charge to which he pleaded.

After hearing Mr. Akinsanya for the appellant who told us that in his view the appellant was not prejudiced and Alhaji Buba Ado for the respondent we came to the conclusion that in the circumstances of this case the conviction should be sustained.

The Emir of Gwandu charged the appellant as follows:

“I, Alhaji Haruna Emir of Gwandu charge you Abdu Romo guilty for the offence of culpable homicide on 24465 at about 1200 hours at Garba Ganga’s farm of Jandutsi you inflicted on Amadu a boy aged 10 with 3 wounds on his head with a hoe which caused to his death at a spot, therefore you are guilty under section 221(b) of the Penal Code of 1959′ and explained this charge to him to mean that he (the appellant) was “suspected that the three wounds which you inflicted on Amadu with a hoe caused his death.”

The Hausa words used were “kisan kai na laifi”-an expression which the High Court sitting on appeal and including a Sharia Court judge was satisfied was well understood by the appellant to mean capital homicide. That being so, and seeing that the evidence was overwhelming, we dismissed the appeal.

We note that the Penal Code of the North speaks of culpable homicide in section 220, and then goes on to state in section 221 that it is punishable with death in certain circumstances but with imprisonment for life under s. 224 if the circumstances fall within section 222.

The Native Courts would be well advised to expand their language and in charging a person with culpable homicide punishable with death tell him expressly that his offence is punishable with death: see for example the form of charge in Appendix B to the Criminal Procedure Code, Part B Form (I) (a) and (b) First, which relates to section 221 of the Penal Code.

Other Citation: (1966) LCN/1314(SC)

Albert Martin Lewis And Anor V Abigail Majekodunmi (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The plaintiffs complain of the decision given by Sowemimo J. on 18 May, 1964 in the Lagos High Court Suit 109/1963, dismissing their claims. These are-

1. A declaration that all that piece or parcel of land marked F in the attached probate copy of the will [is the] family property of Jose Domingo, deceased, the common ancestor of both plaintiffs and defendant.

2. An injunction restraining the defendant from erecting fence or building on family compound marked G mentioned in the said probate copy of the will without the consent of the plaintiffs.

3. An account of all moneys received and rents collected on the said piece or parcel of land marked G in the said probate copy and for an order directing the payment to the plaintiffs of their share on taking of such account.

Jose Domingo made his will on 27 January, 1911; he died on 5 February, and probate of the will in common form was granted on 31 March, 1911. The testator’s daughter Maria sued in July, 1912 to have the probate revoked but discontinued that suit and sued again in October, 1915 the executors Charles Patrick Williams and Alexander Martin Lewis for revocation: Suit 176/1915. The judgment in that suit quotes the pleadings. From the Statement of Claim it will be enough to copy paragraph 1 and paragraph 2:

1. The plaintiff is the only child of Jose Domingo otherwise known as Fadumila late of Tokunboh Street in Lagos who died on the 5th February, 1911.

2. The defendants are the executors of a pretended last will and testament bearing date the 27th day of January, 1911 and purporting to have been duly executed by the said Jose Domingo.

Paragraph 1 of the Defence states that-

The defendants admit paragraphs 1 and 2 of plaintiffs Statement of Claim but say that the last will and testament was not a pretended one. The Defence is signed by A. Alakija, defendants’ solicitor. The judgment then goes on to deal with the allegations that the will was invalid for this reason and the other, and dismissed them as unfounded.

The testator devises sundry pieces of land by reference to the plan attached to his will. He devises a piece to “my daughter Maria Joseph of Okepopo Lagos,” and another piece to “my daughter Lorintina Joseph of Tokunboh Street” (which was his address too).

As to F (which is the subject of the 1st claim in this suit) he gives it to “my nephew Domingo Akindele Joseph now at Sekondi Gold Coast”; and as to G (which is the subject of the 2nd claim and the 3rd) he devises it to “Alexander Martin Lewis his heirs and executors in trust for all my relatives both in Lagos and in the interior who shall desire to build and live in my compound and the same is hereby constituted my family compound”;

and he goes on to declare that Alexander Martin Lewis shall be the head of his family compound.

Alexander Martin Lewis was the child of Lorintina and the father of the plaintiffs in this suit. The defendant Abigail Majekodunmi is the daughter of Maria, who also had other children. In her Defence the defendant alleges that Lorintina (or, as she calls her, Laurentia) was a domestic servant of the testator Jose Domingo and his wife, both of whom adopted her. The learned trial judge refers to this allegation made by the defendant, who supported it by the admission made by the plaintiffs’ father in Suit No. 176/1915 that Maria was the only child of Jose Domingo, the testator; the judge notes that this admission was made in the lifetime of Alexander Martin Lewis and of Maria; he concludes that Alexander’s sons, the plaintiffs, are no blood relations of the defendant and cannot, in face of that admission, say that Lorintina, their grandmother, was a daughter of the testator, although he speaks of her as his daughter in his will. The learned judge goes on to decide that the plaintiffs are strangers for all purposes and cannot make any claim either to the land marked F or to that marked G.

Even if the learned judge were right, he overlooks the provision in the will in regard to G-that it is devised to “Alexander Martin Lewis his heirs and executors in trust for all my relatives”; which gives the plaintiffs, the sons of Alexander, an interest to see to it that G is preserved as the family compound and is not turned into the private property of the defendant or any other relative of the testator. Mr. Thomas, the defendant’s counsel in this appeal, concedes that on any view the learned judge erred in regard to the land marked G on the plan. In effect he concedes both the 2nd and the 3rd claims but says they were superfluous.

As to the 2nd claim: There used to be an old fence of bamboo sticks, the position of which is shown on a plan and on a sketch put in by counsel for both sides at the hearing of the appeal; we have marked them as S.C. 1 and S.C. 2 and attached them to this judgment: (they also show where the new concrete fence has been erected.) The plaintiffs do not object to the defendant putting up a bamboo fence in exactly the same places and to the same extent. What they object to is the new concrete fence erected elsewhere inside G, which bars free access and virtually marks off a part of G as private property. The new fence ought to be pulled down. The plaintiffs are entitled to an injunction restraining the defendant from erecting any fence (except a fence similar to the old bamboo fence where that had stood) or building inside the family compound G without their consent.

As regards the 3rd claim: Mr. Thomas concedes that the defendant is not entitled to profits, if any, from rents of rooms in the family compound G; but he says that the rooms are occupied by members of the family and only one is let for the sake of paying the rates. The defendant might as well provide an account of rents received and rates paid in respect of the premises in G, and it will be ordered that she shall do so on oath within three months from the date of this judgment as from the 1st April, 1963, when the question of an account was first brought to her notice by the present suit, down to the 30th June, 1966.

Before dealing with the 1st claim, we have to refer once more to the use of the admission in the Defence in Suit 176/1915 made by the trial judge in the present case. The judgment in the former suit deals with the allegations against the validity of the will, and the res judicata is the validity of the will. The suit was against the executors of the will; the admission was made by their counsel in his pleading, who may well have thought that the allegation of Maria being the only child of the testator was not germane to the dispute and that the executors as representing the estate were not concerned to deny that allegation and raise an irrelevant question in the case. The pleading of counsel for a party is binding on the party in the suit in which it is delivered for the purposes of that suit, and serves.

The pleading of counsel for a party is binding on the party in the suit in which it is delivered for the purposes of that suit, and serves to reduce the evidence which need be called in the facts in issue, and thus reduce the costs in the case; and the formal admissions which counsel makes must not be stretched beyond those purposes. The learned trial judge refers to the admission in the 1915 suit, and goes on to pose this question in his judgment:

“In view of this admission by plaintiffs’ father that the mother of the defendant in this case was the only child of Domingo Jose, how can his children now say that their grandmother one Lorintina Jose was a daughter of Domingo Jose?”

With respect the true question is whether there is any rule of evidence which estops a party from pleading differently in a subsequent suit from what his counsel formally pleaded in the former suit on a subject that was not material to the former dispute. The judgment in the 1915 suit was not pleaded in the Defence; it was tendered through one of the plaintiffs in cross-examination; it was not relied upon in any way in the concluding address for the defendant in the court below. Why it was put in we cannot understand. We asked Mr Thomas, the defendant’s learned counsel, to tell us whether he knew of any authority for the use made by the trial judge of the admission in the 1915 suit; he said he did not know of any and did not rely on that admission. We have since verified the point; it will be enough to quote this passage from the leading case of Boileau v. Rutlin, 2 Exch. Reports 665 at 681 (154 E.R. 657 at 663):

“The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, upon a different principle, and for the purpose of terminating litigation; and so are the material facts alleged by one party, which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, but only if the traverse is found against the party making it. But the statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.”

We are of opinion that the learned judge erred in the use he made of the former judgment. In regard to portion F, the subject of the 1st claim, Mr. Thomas did not urge that Lorintina was not a daughter of the testator; he urged that on the evidence Domingo Akindele Joseph was not the nephew of the testator himself, but of his wife. So the defendant testified, and Mr. Thomas pointed out that

Other Citation: (1966) LCN/1313(SC)

S.O. Adedeji V Police Service Commission (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N. 

This is an appeal against the refusal of an order of certiorari to remove the decision of the Police Service Commission dated 24th November, 1965 dismissing him from the Police force, and to be quashed.

The appellant, who was an Assistant Superintendent of Police in the Nigeria Police Force, was on the 28th September 1965 served with a letter signed by some-one for the Secretary for the Police Service Commission. A copy of the letter was attached to the appellant’s affidavit (marked exhibit A) and reads:-

“NO. FC.17573/17,

Police Service Commission, Private Bag 12586,

Lagos, Nigeria.

28th September, 1965

Mr. Stephen O. Adedeji,

Asssitant Superintendent of Police,

u.f.s. The Inspector-General of Police, Lagos.

Sir,

It has been reported to the Commission that on the 11th June, 1965, you received the sum of nineteen pounds (£)19 in order to issue certificates of road worthiness for Motor Cycle No.830 and Peugeot Taxi Cab No. WL 1414; a Photostat copy of Certificate, of Road worthiness No. WR 488282 which you issued in respect of the Peugeot car is attached for perusal. This is a contravention of G. O. 04105(i) and also warrants dismissal.

“It is also reported that whereas you signed the said Certificate of Road worthiness certifying that you had examined vehicle No. WL 1414 at Ife you did not in fact examine the vehicle. This is a contravention of G. O. 04105(i) and also warrants dismissal.

“If you have any representation to make on your behalf as to why you should not be dismissed from the Service you are hereby requested to make them, through the Inspector-General of Police, within 48 hours of the receipt by you of this letter.

I am, Sir,

Your obedient servant

(Sgd.) (:C. OKONKWO),

Secretary.

Police Service Commission.”

In reply to this letter, the appellant in a three paged letter dated 19th October, 1965 (exhibit B) sought to exculpate himself. The contents of this letter are not material to this judgment but it is necessary to point out that the appellant set out certain facts which took place prior to his arrest. Certain material facts were later set out in a counter-affidavit filed on behalf of the respondent and sworn to by  one Gbemudu, an Assistant Superintendent of Police, who claimed to have arrested the appellant. Some of these facts contradicted the appellant’s letter of 19th October, 1965.

On the 24th November, 1965, a letter of dismissal from the Police Service Com-mission was served on the appellant. The letter (marked exhibit C and attached to the appellant’s affidavit) reads as follows:-

“No. F.C. 17573/36

Police Service Commission,

Private Bag 12586,

Lagos, Nigeria.

24th November, 1965

Mr. S.O. Adedeji.

A.S.P. (V.I.O.),

u.f.s. The Inspector-General of Police,

The Nigeria Police,

Force Headquarters, Moloney Street,

Lagos.

Sir,

The Police Service Commission has carefully considered your representations dated 19th October, 1965, in, reply to my letter No. FC. 17573/17 of 28th September, 1965 but it does not consider that you have exculpated yourself. It has, therefore, directed that you be, and you are hereby dismissed from the service forthwith for gross misconduct.

I am, Sir,

Your obedient servant

(Sgd.) (E.A. OFFIONG)

for Secretary,

Police Service Commission.”

On the 18th December, 1965 the appellant promptly asked the court for leave to apply for an order of certiorari to quash this decision. An order nisi was made but when the matter was later argued, the learned Chief Justice of the High Court refused to make it absolute and dismissed the application. From that order of dismissal the appellant has appealed to this court.

The arguments before us for the appellant were based on the same premises as argued before the learned Chief Justice and may be summarised under three submissions as follows-

1. That the provisions of General Order No. 04107 dealing with removal or dismissal of officers from the service have not been complied with.

2. A full statement of the facts or evidence upon which the Police Service Com-mission relied for dismissal of the appellant was not at any time communicated to him, and this is a breach of the rules of natural justice.

3. It was necessary in this case to have taken oral evidence, and failure to do so is a denial of justice.

We propose to deal first with the third submission. Chief Rotimi Williams for the appellant, whilst not stating categorically that in all cases oral evidence must be heard by the Police Service Commission, argued that in a case of this nature with its peculiar circumstances, oral evidence should have been heard, and the letter exhibit A to the appellant was not enough. We do not know the peculiar circumstances Chief Rotimi Williams referred to, but what we think was peculiar was the fact that an allegation of corruption was made against the appellant and despite his arrest on the spot, the Director of Public Prosecutions Western Nigeria, refused to prosecute the appellant on the ground that it would not be in the interest of the public generally, or the Police Force in particular, to do so. We refrain from saying any more about this.

We wonder, however, whether the attitude of Chief Williams to this is that the trial in court which did not take place should have been staged by the Police Service Commission, because we do not see any provision in the General Orders which include oral evidence as essential to proceedings before the Commission; nor were rules made by the Commission for regulating its affairs in such circumstances made available to the court below, or to this court, which make It essential for the Commission to hear oral evidence. We are of the view that the Police Service Commission, like any other tribunal of this nature, is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline and the like – See R. v. Central Tribunal Ex pane Parton 32 T.L.R. 476. It is of the utmost importance however that the enquiry must be in accordance with the principles of natural justice. We do not think this re-quires oral hearing. Chief Williams has urged that in some cases, like the instant case, anything short of oral hearing will lead to Injustice. He referred us to a pas-sage in de Smith’s Judicial Review of Administrative Action, at page 110 where the learned author said-

“A person who is entitled to the protection afforded by the audi alteram parterm rule must not only be given adequate opportunity to know the case he has to meet; he must also be given an adequate opportunity to answer it.”

But the learned author continues, and this is important for our purpose-

“But he is not entitled to an oral hearing unless such a hearing is expressly prescribed:”

In an Australian case R. v. City of Melbourne, Ex Pane Whyte (1949) Victorian Law Rep. 257 where a Licensed Vehicles Committee was performing quasi-judicial functions and was acting judicially when considering the revocation, cancellation or suspension of the prosecutor’s licenses ft was held that in the absence of provisions enforcing an oral hearing the tribunal need not hear the parties. At page 265 of the report, in his judgment O’Bryan J. said-

“It is quite clear to my mind that the licensee must be given a reasonable opportunity of presenting his case and of meeting any relevant allegations which are made against him. But does that mean that he has the right to be heard in person before the tribunal? In my opinion it does not mean such a thing. He would, in my opinion, have no such right when his original application for licence was being considered or when his application for renewal was under consideration.”

As we have observed earlier, we are not aware that an oral hearing Is prescribed in any rules governing the procedure of the Police Service Commission. We may add that in our view, where oral evidence is prescribed, If ft is wanted, it should be asked for. The Commission is an administrative department or tribunal, created by the Constitution, and, of this type of body or tribunal, Lord Haldane, LC. In the case local Government Board v. Arlidge [1915] A.C. 120 at page 132 said-

“Such a body as the Local Government Board has the duty of enforcing obligations on the individual which are imposed in the Interest of the community. Its character is that of an organisation with executive functions. In this it resembles other great departments of state. When therefore, Parliament entrusts it with judicial duties, Parliament must be taken in the absence of any declaration to the contrary, to have Intended it to follow the procedure which is its own, and is necessary if R is to be capable of doing its work efficiently.”

We now consider the first and second submissions together. It was submitted that the provisions of General Order No. 04107 have not been complied with. After setting out the grade of officers (which includes

Other Citation: (1967) LCN/1528(SC)

Folajin Pabiekun And Ors V Gbadamosi Ajayi (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The respondent obtained judgment in Suit 1/135/57 against Alphonso Pabiekun, who defended the suit as representing the Pabiekun family, and took out writs of execution to recover the judgment debt. After the attachment of certain immovable property, the appellants laid claim to the farms at Kanga, Ologan and Araromi in Ife District and also to the house at Yakare compound, Ife, alleging in their Statement of Interest that they are the exclusive owners of the farms, and that the house is the joint property of all the children of the late Pabiekun, and alleging further that they were not parties to the suit No. 1/135/57 and did not authorise Alphonso Pabiekun to represent them in defending that suit.

We note here that the 1st appellant is a son of Pabiekun; the other two are minor children of another son, and the 1st appellant was claiming for them too, as their next friend. As to the second allegation Oyemade J., believed that the 1st appellant knew of that suit and was bound by the result. As to the claim of ownership, the learned judge found that the farmlands were allotted to the Pabiekun family, a branch of the Lukugba family, and belonged to the Pabiekun family, as also did the house, and execution could be levied for a debt of the Pabiekun family. Hence this appeal.

It was not seriously argued for the appellants that they were exclusive owners of the lands attached: the arguments for them were on other lines. The main argument was that the appellants had not authorised Alphonso Pabiekun to defend on their behalf and were not bound by the judgment in suit 1/135/57, so the farms they occupied could not be attached. This is an attack on that judgment, but that judgment is not under appeal. That suit was against Alphonso Pabiekun on behalf of himself and other members of Pabiekun family; the defendant applied for an order to defend the suit in a representative capacity with an affidavit and a resolution, and the order was made. It is true that the 1st appellant did not sign that resolution; but he knew of the suit, and if he did not want Alphonso to be the champion of the Pabiekun family, he ought to have taken steps at the time. He cannot impugn the validity of that order and of the judgment against the Pabiekun family in this interpleader claim to exclusive ownership of some of the lands attached. That order and judgment stand.

The other argument is that the writs of execution are for the attachment and sale of the immovable property respectively of Yesufu Pabiekun, Elizabeth Pabiekun, and Latundun Pabiekun. We note however that at the bottom of each of the writs it is stated that “the immovable property of the defendant comprises (or ‘consists’) of. .. owned by (or ‘belonging to’) the Pabiekun family;” and that makes it clear enough that the execution is against the Pabiekun family property for the judgment against the Pabiekun family.

The decision in the interpleader summons now under appeal is that the properties attached belong to the Pabiekun family, not to the claimants; they may be in occupation as members of the family but not as owners.

The appeal is dismissed with thirty-three guineas costs to the respondent/judgment creditor.

Other Citation: (1966) LCN/1312(SC)

Dennis Njemanze V Shell Bp Port Harcourt (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN J.S.C.

This appeal by the plaintiff was dismissed on the 1st November last; the court then said that reasons would be given later, and they are given now.

The defendant named in the writ of summons was “The Shell BP Port Harcourt.” When the case was called on in the High Court (E.N.) at Port Harcourt, counsel for the defendants’ company stated that “there is no company known as Shell BP.”; he cited Agbonmagbe Bank Limited v. General Manager. G. B. Ollivant Ltd. and another [1961 ] 1 All N.L.R. 116, and submitted that the case should be struck out. Thereupon counsel for the plaintiff asked that an amendment be ordered. The Learned judge ruled that he would follow that case and struck out the claim.

The 1st ground of appeal is that the trial judge erred in following the case cited to him; the 2nd reads as follows:

“Error in law: The learned trial judge was wrong in law to refuse an application for amendment when the defendant appeared in court and stated that it has now assumed a new name viz: The Shell-BP Petroleum Development Company of Nigeria Limited and no longer answers The Shell BP”

As to the first ground, whether it was right or not to strike out the first defendant in the case cited would not be decisive: for each case must be decided upon its own facts.

The second ground of appeal is the important one; and we note that it makes an averment of fact on what the company’s counsel stated. There is no evidence for that averment of fact: we have quoted the learned judge’s note of what counsel for the defendants’ company stated; he stated that “there is no company known as Shell BY.”. The ground of appeal plainly means that the company’s counsel told the court below that earlier the company was named “The Shell BP” and later it changed its name to “The Shell-BP. Petroleum Development Company of Nigeria Limited.” If that had been true, it would not have mattered: see s.10(5) and (6) of the Companies Act (cap. 37 in the 1958 Laws of the Federation etc.).

Before us, learned counsel for the plaintiff did not argue on the lines notified in the second ground of appeal: his argument was that the defendant put in an appearance; that there were magazines issued by Shell BP; that letters were addressed to Shell BP; and that they held themselves out as Shell BP Port Harcourt: therefore they could be sued as that.

It was true that the company put in an appearance; but that did not prevent it from objecting that the defendant named in the writ of summons was not a legal person. An officer of the company must have been served with the writ, and it was right that the company should appear and object, as it wished to do, that the action was not properly constituted. As for the other arguments, they were statements of fact made by counsel to us for which there was no evidence. This the learned counsel admitted in reply-that he had added facts not on record, and he asked for leave to put in an affidavit, which we did not think he ought to have. We should also like to note that counsel ought not to have argued on lines different from those notified in his ground of appeal.

This appeal illustrates the need for care in bringing an action. It is common knowledge, or ought to be, that a company is registered under the Companies Act and has a registered name: s.18(2). This can easily be found out; it has to be shown on a signboard at its place of business pursuant to section 65(1); and it can be ascertained under s. 231(5) of the Companies Act from the Registrar. There is little excuse, if any, for a plaintiff who sues for wrongful dismissal not suing the company by its registered name. If there was any excuse for the mistake, no affidavit of the facts was prepared; the need for it would have been realised if the authorities had been looked up.

Learned counsel for the company referred to Alexander Mountain & Co. (suing as a firm) v. Rumere Ltd. [1948] 2 K.B. 436. There the plaintiff was wrongly named. The plaintiff’s solicitors applied on an affidavit to amend in the High Court, but amendment was refused. They prepared an affidavit of more facts and put it in on appeal, presumably by leave. They were diligent in explaining the circumstances, and that case is useful on the need for diligence to explain.

In the present case the plaintiff rushed to sue. Apparently it did not occur to his solicitor that there was anything wrong in suing the company merely as Shell BP; he did not look up the law before or after suing. Even after he appealed, it did not occur to his solicitor to look up cases in the White Book for guidance on how to go about the matter on appeal: he did not prepare an affidavit to explain how the mistake arose and state the registered name of the company which had been his employer and which he wished to sue; he did not give notice that he would apply for leave to put in an affidavit and also for leave to amend his second ground of appeal, which was apparently drawn up in haste; and when the appeal came up for hearing, his learned counsel was content to argue it without citing any authorities on thepractice of the courts and without any evidence of the facts he wished to rely upon.

It was not enough to complain of the trial judge’s refusal to amend: it was necessary to show that there were reasonable grounds of excuse in naming the defendant wrongly and that the name of Shell BP could not have given rise to any reasonable doubt as to which company was being sued. An amendment of the title of an action cannot be had merely for the asking, and an appeal needs preparation. None was made either on the law or on the facts and, as no case was presented to show that an amendment ought to be allowed, the appeal was dismissed.

There is one observation we must make: the record does not give the name of the company for whom counsel appeared in the High Court; it merely states “Nwonodi for defendants’ company.” Counsel, if he did not give the name of the company, ought to have been asked to give it, and it should have been noted by the judge.

It may be helpful hereafter to add that the cases can be found in the White Book under ‘Mistake as to plaintiff or defendant-Misnomer or Substitution’ below Rule 6 in Order 15 of the English Supreme Court Rules.

Other Citation: (1966) LCN/1357(SC)

Salihu Hong V The State (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C 

Salihu Hong was convicted on 9 April, 1966 by Bate J., sitting in the High Court (Northern Nigeria) at Jos, on the following charge:

“THAT YOU SALIHU HONG on or about the 24th day of February, 1965 at Yola in Adamawa Province, by putting Nelson Okolie Chukwurah in fear of taking his sister to an Alkalis Court dishonestly induced him to deliver to you one pound (£1) and you thereby committed an offence punishable under section 292 of the Penal Code and triable by the High Court.”

He applied for leave to appeal on the facts, and his application was considered on the 23rd June, 1966; the Court then stated that the conviction would be altered to an attempt, and the reasons will now be given.

Someone had made a complaint to the Native Authority Police at Adamawa, in which the applicant was serving as a constable, against the sister of Chukwurah (the person named as the victim in the charge) and Chukwurah bailed her out.

The complaint was dropped the day after it was made; but a few weeks later the applicant visited Chukwurah at night and told him that unless he paid some money, the applicant would take up the complaint in the Alkali’s Court and his sister would be imprisoned or fined. Chukwurah told the applicant to come for the money the following night; on the following day he reported the matter to the Nigeria Police, who arranged with him to trap the applicant, and the applicant was caught when he received two marked ten-shilling notes. Upon that evidence the trial judge found that all the ingredients of the offence charged had been proved. That finding we must discuss in the light of the Penal Code of Northern Nigeria.

The charge was laid under section 292 of that Penal Code, which provides that-

“292. Whoever commits extortion shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”

Extortion is defined in section 291 in these terms:

“291. Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the person so put in fear to deliver to any person any property or document of title or anything signed or sealed which may be converted into a valuable security, commits extortion.”

(We leave out the illustrations below the text). For present purposes we stress the words “induces the person so put in fear to deliver.” They mean that the person who delivers money or something else is driven by the fear of the threatened injury to deliver it. In the present case Chukwurah gave the applicant the two ten-shilling notes not because of fear created by the threat, but in consequence of the arrangement to trap him and have him punished; so the offence was not extortion. The applicant was, however, guilty of an attempt at extortion under section 293, which reads as follows:

“293. Whoever in order to commit extortion puts any person in fear or attempts to put any person in fear of any injury to that person or to any other, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

The applicant is caught in the words “attempts to put any person in fear of any injury to that person or to any other”; he did make such an attempt, and ought to have been convicted of an attempt contrary to section 293-which could have been done by virtue of the provision in section 219 of the Criminal Procedure Code of Northern Nigeria, that-

“219. When a person is charged with an offence he may be convicted of an attempt to commit such an offence although the attempt is not separately charged.”

And a conviction for an attempt will be substituted.

We mentioned at the hearing the parallel situation which may arise under a charge of obtaining goods by false pretences in a case where the complainant parts with his goods, not because he was deceived by the pretence, but for some other reason, e.g., for the sake of laying a trap; and we referred to para. 1941 in Archbold (ed. of 1962) where authorities are cited for the view that the accused person may in such a case be convicted of attempting to obtain by false pretences.

The advice is given in para. 1960 that in a charge for the full offence of obtaining by false pretences prosecuting counsel should ask the complainant “Why did you part with your money?” or at least “Did you believe what the prisoner told you?”

The learned authors of Archbold go on to say-

“but proof that the false pretence operated on the mind of the prosecutor need not in every case be afforded by the direct evidence of a witness to that effect, if the facts are which could be suggested as having been the operative inducement.”

Likewise in a charge of extortion, although it may not be indespensible, it would be useful if prosecuting counsel asked the complainant “Why did you deliver what you gave to so-and-so?” in order to have direct evidence that the fear of injury threatened by the accused person was what made him yield to the dishonest demand of the accused person. In the present case Chukwurah, had he been asked that question, might have said that he was alarmed when the applicant made the threat, but he could not have said that later, when he gave the money-which is the crucial point of time-he did so out of fear

On the other hand, it is plain from the judgment under appeal that the learned trial judge was satisfied of facts which proved the applicant guilty of an attempt to extort contrary to section 293 of the Penal Code, and in exercise of the Supreme Court’s powers under section 27 of the Supreme Court Act 1960 we substitute a conviction of an attempt at extortion contrary to section 293 of the Penal Code and a sentence of eighteen months for the verdict found and the sentence passed by the High Court.

Other Citation: (1966) LCN/1311(SC)

Grace Amanambu V Alexander Okafor And Chukwinlo Ulasi (1966)

LawGlobal-Hub Lead Judgment Report

ONYEAMA, J.S.C.

The plaintiff claimed to be the widow of one Stephen Olisadebe Amanambu who died as a result of injuries he received in a motor accident which occurred on the 6th of March, 1960, between Lokoja and Okene in Northern Nigeria, and brought an action to recover damages for herself and other persons said to be dependants of the deceased.

The action was commenced in the High Court at Onitsha in Eastern Nigeria and was for ‘damages under the Fatal Accidents Law, Northern Region, 1956.’ The particulars of the persons for whose benefit the action was brought and of the nature of the claim in respect of which damages were sought were ‘pursuant to the Fatal Accident Law, N.R., 1956:’ (meaning Northern Region.)

The defendants were the driver and the owner of the offending vehicle, the drivers address was given as Cable Point, Asaba, in Mid-Western Nigeria and the owners as 64 Iweka Road, Onitsha, in Eastern Nigeria.

None of the parties resides in Northern Nigeria. The defendants in their Statement of Defence, raised the question of the jurisdiction of the High Court at Onitsha ‘in respect of an accident that happened in the Northern Region which was brought under the Fatal Accident Law Northern Region, 1956.’ The plaintiff then applied to the court and obtained leave from Reynolds, J. on the 24th of May, 1961 to amend the Statement of Claim so as to allege that the claim of damages was brought under the Fatal Accident Law, 1956 of Eastern Nigeria. There is no record that the application was opposed or that any arguments were advanced on it.

The action came up for hearing before Betuel, J. on the 10th of November, 1961, who heard arguments on the question of jurisdiction, after it had been established by evidence that the accident occurred in Northern Nigeria and that the deceased died there.

It was submitted to the learned trial judge on behalf of the defendants that the order granting leave to amend the Statement of Claim was invalid, . and that since the claim was brought under the Fatal Accidents Law of Northern Nigeria, a law enacted by the Northern Legislature, the proper course was for the plaintiff to withdraw his action and bring a fresh one.

For the plaintiffs it was argued that the order of one judge cannot be reopened by another of the same court, and that since one of the defendants was resident within the jurisdiction of the High Court at Onitsha the action could be brought in that court by virtue of 0.7, r.4 of the High Court Rules.

Betuel, J. decided that he was entitled to regard the order of Reynolds, J. granting leave to amend the Statement of Claim as a nullity, and that he had no jurisdiction to hear the suit.

We think that Betuel, J. erred in treating the amendment made by Reynolds, J. as a nullity: for it was made in the presence of both parties, and Betuel, J. had no power to review it as if he were sitting on appeal from that order of amendment. Therefore the case must be looked at as a claim for compensation founded on the Fatal Accidents Law of Eastern Nigeria, in accordance with that amendment, in respect of an accident which occurred in Northern Nigeria.

In our view that Law of Eastern Nigeria confers a right to sue for compensation in respect of a fatal accident which occurred in Eastern Nigeria and not outside it: for the Legislature of Eastern Nigeria could only legislate for compensation in regard to such an accident. Therefore the claim, which is based on the Fatal Accidents Law, Eastern Nigeria, cannot stand, and the appeal must be dismissed.

Had the claim as originally based on the Fatal Accidents Law, Northern Nigeria, been left unamended, then we would have had an opportunity of considering whether it could have been brought in the High Court of Eastern Nigeria, and of going into questions of private international law and the possibility of enforcing in Eastern Nigeria a claim founded on a fatal accident in Northern Nigeria in respect of which compensation was being claimed under the Fatal Accidents Law, Northern Nigeria. But we can not do that in the present case: for here the plaintiff insists that he can found his claim on the Fatal Accidents Law, Eastern Nigeria, and with that we cannot agree.

In dismissing this appeal we wish to make it clear that we do not agree with the reasoning of Betuel, J. There will be no order as to costs.

Other Citation: (1966) LCN/1310(SC)

James Edun And Others V Inspector-General Of Police (1966)

LawGlobal-Hub Lead Judgment Report

BRETT J.S.C.

The appellants were convicted by the Chief Magistrate, Warri, on a charge containing two counts. Their appeals to the High Court were dismissed and they have now appealed to this Court.

The material parts of the charge originally read-

‘1st Count:-That you took without lawful authority 3 ballot boxes which were in the possession of one Henry Edema which ballot boxes were to be used in the Mid-West Region election and thereby committed an offence contrary to section 59 (1) (g) of the Western Nigeria Parliamentary Electoral Regulations, 1960.

2nd Count: That you stole from Henry Edema’ (a number of named articles) ‘and immediately before the time of such stealing did threaten to use actual violence to the said Henry Edema and thereby committed an offence contrary to section 341 of the Criminal Code and punishable under section 342 of the same law.’

The record of the proceedings on the 19th October, 1964 reads-

‘Charges read to the 13 accused persons and each elects summary trial and plead: Not Guilty to both counts. Bail £200 and 1 surety each. Inspector Amu for Police. Each accused in person. Adjourned 23-10-64 for hearing at the instance of accused persons.’

When the case was resumed on the 23rd October the accused were represented by counsel, who immediately took objection to the wording of holding that it did not. That does not conclude the matter, since section 21(1) (a) of the Magistrates’ Courts Law in force in Mid-Western Nigeria appears to give a Chief Magistrate power to deal summarily with an offence for which the maximum penalty does not exceed a fine of E500 or imprisonment for five years without giving the accused person the option of being tried in the High Court, notwithstanding section 304 of the Criminal Procedure Act. When section 21 (1) (a) of the Magistrates’ Court Law was brought to the attention of Mr. Boyo, who appeared for the appellants, he did not argue the question, but pointed out that the section would not apply to the count for robbery with violence and submitted that on the amendment of the first count the Chief Magistrate ought to have asked the accused persons again whether they elected summary trial on the second count.

For this submission Mr. Boyo relied on the decision of the West African Court of Appeal in R.v.Ijoma (1947) 12 W.A.C.A. 220, where the Court said “We have no doubt, however, that where the word ‘charge’ is used in section 162 and 163 of t he present Ordinance it refers to the document whereupon the accused is charged and includes, therefore, a document which may contain more than one statement of an offence.”This appears to be first case in which this point has been taken. In Jones v. Police (1960) 5 F.S.C.38,which is the authority for saying that on the amendment of a charge alleging an indictable offence the accused must be given a fresh opportunity of electing summary trial, there was only one count in the charge. As the West African Court of Appeal pointed out in R.v.Ijoma,the Criminal Procedure Act uses the word “charge” in a way which may prove misleading, and in some sections of the act such as section 156 the word can only mean an accusation or count. We do not doubt the correctness of the decision in R.v.Ijoma, but in view of the different meanings which the word “charge” bears in different sections of the Act a decision on one section cannot be conclusive on the meaning to be given to the word in another section.

Section 304 (2) lays down the procedure to be followed “If a magistrate at any time during the hearing of a charge for such an indictable offence becomes satisfied that it is expedient to deal with the case summarily’, and requires that he shall, among other things, cause the charge to be reduced,” In this context it is impossible to regard the word “charge “as meaning a document, and in our view for the section was sufficiently complied with in this case. The reason given for the decision in Jones v. Police was that “it may be that other matters have been introduced into the amended charge for which the accused would prefer to be tried by a judge, his consent to being tried summarily not having gone any further the first count as not diclosing an offence. Prosecution applied to amend it by deleting the words “were to be used” and substituting the words “then in use”, which brought it into conformity with the wording of the regulation, and the record goes on-

“Amendment granted. Amended charge read to accused persons and they plead not guilty.”

The trial then proceeded in the ordinary way.

The first three grounds of appeal argued complain that the Chief magistrate failed to comply with sections 164 and 304 of the Criminal Procedure Act after amending the first count. It is said that there were three irregularities; (a) that the record fails to show that each of the accused persons was called on to plead separately to the amended charge; (b) that the Chief magistrate omitted to ask the accused persons if they were ready to be tried on the amended charge; and 9c) that the Chief Magistrate omitted to ask the accused persons if they elected to be tried summarily on the amended charge. The first two of these submissions relate to section 164, and the third to section 304.

We do not regard the first submission as well founded. It would have been better if the chief Magistrate had written “each pleads not guilty” instead of “they plead not guilty”, but they were represented by counsel who took no objection to the course adopted, and asno attempt has been made to supplement the record by any further evidence of what took place we think it may safely be assumed that the correct procedure was followed.

As regards the second, it is true that the Chief Magistrate ought to have asked the accused if they were ready t be tried on the amended charge, but, as the Director of Public Prosecutions has pointed out, subsections (2) and (3) of section 164 show that even if an accused person says that he is not ready the court has to consider the reasons he gives and decide whether any prejudice is likely to result if the trial is proceeded with. It must be presumed that defending counsel would have asked for an adjournment if he was not ready, and o grounds have been put forward for supposing that any prejudice has resulted from the Chief Magistrate’s omission. So far as that submission goes we hold that although it is technically well founded no substantial miscarriage of justice has occurred.

The third submission was originally made in relation to the count which was amended, that is the count under the Parliamentary Electoral Regulations. The maximum penalty for an offence under regulation 59 is imprisonment for a term not exceeding two years or a fine of E500, or both. That makes it an indictable offence within the definition in section 2 of the Criminal procedure Act, and we must rule that the learned judge in the High Court misapplied the decision in R.V. Eze (1950) 19 N.L.R.110, in than the original charge” and as this reason cannot apply where a count for an indictable offence is left unimpeded we do not regard the decision as one which we need extend to such to such a case.

The next ground of appeal deals with the proper interpretation of regulation 59 of the parliamentary Electoral Regulations which provides for the punishment of anyone who “without due authority takes, opens or otherwise interferes with any ballot or packet of ballot papers then in use for the purpose of the election.” Henry Edema had received a letter appointing him presiding officer for the Agogbororo Polling Station and had been g given three ballot boxes and a supply of ballot papers and other stationery for use at the Polling Station. He was on his way to the Polling Station at about 12.30am.on the day when the election was due to be held when, according to the facts found by the Chief Magistrate, the appellants and a number of other persons, all carrying weapons, stopped him and took away the ballot boxes, ballot papers and other articles, with threats of violence.

It is submitted for the appellants that on these facts the ballot boxes were not “then in use for the purpose of the election.’ Both the Chief Magistrate and the judge considered this question with care and each supported his view by arguments based on the interpretation of “use” and other words on other statues. With respect, we do not find these decisions helpful for construing this particular regulation, and we think the true distinction is that pointed out by Ungoed-Thomas, J., in Bliss v.  Small borough R.D.C. {1963}1 W.L.R.1155, where he said “I would hesitate to conclude that land could properly be described as “in use’ or ‘used’ as land on which a caravan is stationed, if the use was mere preparation of an entirely new site for caravans.”Applying this distinction, we find the first thoughts of the person who drafted the charge preferable to his second thoughts, and although a count alleging that the ballot boxes “were to be used for the purpose of the election “Fails to disclose an offence under regulation 59 we consider that it describes the position more accurately than the amended count, with its allegation that the boxes “were then in use” for that purpose.

It might lead to embarrassment in the future if we tried to lay down precisely where the line is to be drawn between preparation for use and use, and we need only say that in our view the preparatory stage had not been passed in this case. as regards arguments based on the purpose of the legislation, if the legislature wishes to do so it can always make it an offence to interfere with the necessary preparations for the conduct of an election; it has not interfere with the necessary preparations for the conduct of an election; it has not done so in regulation 59(1) (g) and it may have regarded the ordinary criminal law as sufficient. For this reason the appeals are allowed on the First count, the convictions and sentences are set aside and verdicts of not guilty are entered.

As regards the second count, there was ample evidence to justify the convictions, and we need only consider two specific points that have been argued. There was a dispute whether Henry Edema had been validly appointed as Presiding Officer for the Agogbororo Polling Station, and the second appellant maintained that he himself had been appointed to that office, or at least that he had reasonable grounds for believing so, and that in taking the ballot boxes and other articles from Henry Edema he was acting under an honest claim of right, and without intention to defraud, or in the honest and reasonable belief that he had due authority to act as he did, in which case he would be entitled to be acquitted under section 21 or section 23 of the Criminal Code of Mid-western Nigeria. This submission would have carried more weight if, after removing the articles from Henry Edema, the second appellant has gone to the Polling Station in order to carry out the duties of Presiding officer himself, but he did not do this, and we think the courts below were right in rejecting the submission.

The same may be said of the first appellant’s submission that as a candidate in the election he had some special rights of intervention. Finally it is submitted that a document prejudicial to the second appellant was wrongly admitted in evidence as Exhibit W.

This was a document signed by him and tending to show that he had been concerned in stopping the polling at another station; it was put to him in cross-examination and we think it was admissible as showing that he was not, as he claimed, acting in good faith as a person who believed himself to be the duly appointed Presiding Officer for Agogbororo Poling Station.

No grounds have been shown for reversing the convictions on the second count, and the appeals of all the appellants are dismissed as regards that count.

Other Citation: (1966) LCN/1355(SC)

Joshua O.williams V Olajumoke O. Williams (1966)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

By a petition filed in the Divorce Registry of the High Court, Ibadan the appellant asked for a dissolution of the marriage solemnized between himself and the respondent on the 18th day of February, 1950 on the ground of cruelty and he also asked for custody of the three issues of the marriage. Originally, no discretion statement was filed with the petition but in the course of his evidence in the High Court the appellant, with leave of the court, filed a discretion statement.

At the hearing the appellant gave evidence and called four witnesses and the respondent also gave evidence but called no witness. The learned trial judge (Doherty J.) dismissed the petition and the appellant has appealed against this dismissal on three principal grounds-

“1. That the learned trial judge erred in law in holding that the evidence of the appellant has not established a case for dissolution of the marriage.

2. That the learned trial judge misdirected himself in law when he held that danger to the petitioner’s life, limb or health (bodily or mental) or that a reasonable apprehension of such danger could only be established on medical evidence.

3. That the trial judge erred in law in dealing with the question of the exercise of his discretion once he found that the cruelty, the ground on which the petition was based, was not proved.”

Briefly, the principal facts given in evidence in support of the petition were as follows: Immediately after their marriage in 1950 in Lagos, the appellant and the respondent went to England for further studies. Although they lived together for most of the period they stayed in England, they were not happy and frequently quarrelled as the respondent was in the habit of nagging the appellant whom she quite often suspected of having illicit association with other women. In July, 1956, the respondent attacked and beat up a female co-tenant, one Olga from the West Indies, whom she believed, without just cause, was having sexual intercourse with the appellant.

When the appellant intervened during the struggle, the respondent assaulted him by slapping him on the face. In October, 1956, appellant came home from work to find a note which the respondent whom he did not find in the matrimonial home left behind- in the note she indicated where the appellant could find the key of the door to the house but asked him not to “look for her”. There had been no quarrel immediately preceding this conduct of the respondent and appellant was therefore very worried; moreover the second child of the marriage was at the time only three months old. About one week later, one Mr Akinsete (P.W.4) found the respondent and persuaded her to return to the matrimonial home. Thereafter the respondent frequently nagged the appellant during the night in spite of all efforts by the appellant to convince her that her belief in his illicit association with other women was unjustified. The situation continued when they returned to Nigeria in March, 1957, and the appellant who was in consequence quite often tired in the mornings broke down in health from time to time.

On their return to Nigeria, the respondent who qualified as a nurse was the first to obtain permanent employment, as a nursing sister, with the Government of Western Region and was later transferred to Akure while the appellant was employed on a temporary basis, as a ‘mechanic’ with the `Motors Department’ of Messrs S.C.O.A. in Lagos. There were now two children of the marriage, one of whom was under a year and both of whom needed the care of the respondent; although the appellant objected to her transfer to Akure, the respondent left in August, 1957 for Akure from where she was subsequently transferred to Ibadan. Later, the appellant took the children to Ibadan occasionally to see the respondent. On one such visit in January, 1958, he arrived in the night but the respondent was not in the house. She returned very late that night with a female friend; appellant asked why she stayed out so late and a violent disagreement followed; the respondent poured invectives on him, called him a “bloody mechanic” and asked him not to call on her any more.

She soon drove away in a car to the police station where she lodged a complaint; later the appellant was sent for by the police who after asking him a few questions allowed him to go and he returned to Lagos that night in a taxicab. Appellant said he was both annoyed and worried and also felt ashamed at the conduct of the respondent. In March, 1958, the appellant was employed in the Nigeria Police as an Assistant Superintendent of Police and later at the request of a brother of the respondent he went to Ibadan where his disagreement with the wife (respondent) was resolved. In May, 1958, the appellant was transferred to Ibadan and he and the respondent lived together once more; the era of peace was shortlived for trouble soon started.

In September, 1958, however, the appellant was transferred to Benin and sometime later he came to Ibadan on duty and as he was about to return to Benin the respondent met him at a petrol station in Lebanon Street and accused him of planning to go to Benin with another woman; although he did his best to convince her that her suspicion was unjustified the respondent created a scene and a number of people gathered to listen to her. Appellant left for Benin eventually but he was so annoyed and worried that he suffered temporarily from loss of full control of his mind and sustained an accident along Akure/Owo Road while driving back to Benin in his car that day. On another occasion during a party arranged at Benin for the appellant who was being transferred to Warri, the respondent broke through a line of dancing couples to attack a lady who was dancing with the appellant whom she accused of dancing “too closely” with this lady and the party ended abruptly.

Thereafter appellant and respondent lived in Warri and later again at Ibadan but the respondent continued to be difficult and nagged the appellant during the night. The respondent underwent a surgical operation in an Ibadan hospital in 1961 and in February, 1961-shortly after his return from the hospital-he came home one evening at 7 p.m. to find that the respondent was not at home. At midnight the respondent had still not returned and the appellant locked the door. Later, respondent returned and knocked at the door and appellant asked her to go back to wherever she had been all night; respondent drove away in her car but came back an hour later in the company of one Akinyemi who pleaded with the appellant and respondent was eventually allowed to enter the house.

On entering, she went straight to her room, removed some of her clothes, and despite the warning given her by the appellant that if she left the house again that night she would not return to it, the respondent again drove away in her car leaving behind a child 8 months old (the 3rd child of the marriage) and remained away from the matrimonial home for two nights. Thereafter appellant had no sexual intercourse with the respondent. Shortly after, appellant was transferred to Ife in 1962; while there the respondent informed him by telephone in February, 1962, that she had obtained a government scholarship to study in Western Germany. Appellant objected to her going to Germany and warned her that if she did in the face of the objection she would not return to the matrimonial home again. In July, 1962, the respondent went to Germany and the appellant presented the petition for divorce.

In a discretion statement (Exhibit C) appellant disclosed that following the cruelty meted to him by the respondent who left for Germany he “formed a relationship” with another woman with whom he later committed adultery and who now has a child for him, and he asked the court to exercise its discretion in his favour.

The respondent denied all allegations of cruelty and accused the appellant of adultery with various women whose names she did not give and whom she did not make parties to the proceedings. The learned trial judge described the respondent as untruthful and while rejecting her evidence accepted that of the appellant. However, he held that the facts given in evidence in support of the petition did not amount to cruelty and although he found that the appellant objected to the departure of the respondent to Germany in 1962, he held that his objection was “unreasonable.” Further he held that the, discretion statement filed by the appellant was not sufficiently frank and that he did not come to court with “clean hands,” and he dismissed the petition. Parts of the judgment read-

“Comparing the evidence of the husband and wife generally I find that the husband’s version of their two conflicting stories is the more probable one because some of the details narrated by him were corroborated by independent witnesses. The wife, in my opinion, is not a truthful witness and since she called no witness, I cannot place much reliance on her testimony, where it stands alone.”

On the issue of cruelty, the learned judge observed-

“But the question I have to resolve is, assuming that I accept the husband’s evidence, do the allegations made by him amount to cruelty? …’ Legal cruelty may be ‘defined as conduct of such a character as to have caused ‘danger to life, limb or health or to give rise

Other Citation: (1966) LCN/1354(SC)

Ogbu Nwagu V The State (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J. S.C.

This appeal was heard on 8 August, 1966, when judgment was reserved

Ogbu Nwagu was convicted on 19 May, 1966 by Kassim J. at Afikpo on an information which accused him of murdering Oji Nwokorie at Umudomi Onicha on 29 December, 1965: (Charge AB/71C/66).

His statement to the Police was that Oji was his wife, and they had two children; that after that she and Nwafo Okoro gave him poison, which did him harm; that they had had some other incidents too; that on the 29th December, 1965 in the night, he asked his wife for some palm-oil to eat his yam with; that she held him by the neck, and also by his private part, tapping a knife in his mouth; and that when it fell down, he picked it up and stabbed her. It was only one stab on the left side, but it pierced the lower lobe of the lung at the back, and that caused her death. Her brother said she was much bigger than the appellant. His evidence at the trial was a little confused, but in substance was much like his statement as to the circumstances of the homicide. He explained how in the struggle the knife fell down, and he picked it up and stabbed his wife. The trial judge was of opinion that it was a sham and a poor afterthought, and concluded his judgment with these words-

“I am unable to hold from the evidence before me that the accused established either a defence of self-defence or of provocation.”

That, with respect, is a serious misdirection: for it puts an onus on the accused person to establish a defence as if, upon his admitting that he killed the deceased, it became his duty to prove that he did so in circumstances of excuse or mitigation or else he was guilty of murder. Such an approach runs counter to the view which has prevailed since Woolmington v. Director of Public Prosecutions [1935] A.C. 462; the onus does not shift onto the accused person to establish any defence; and Mr. Offiah, who appeared for the State, rightly conceded that the proper verdict in this case was manslaughter.

The Court considers that the conviction for murder was wrong and directs a verdict of manslaughter to be substituted, and sentences the appellant to a term of three years imprisonment with hard labour.

Other Citation: (1966) LCN/1309(SC)