Albert Amadi Uzukwu Vs The Queen (1963) LLJR-SC

Albert Amadi Uzukwu Vs The Queen (1963)

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The appellant was tried and convicted in the High Court of Eastern Nigeria on a charge of stealing the sum of #995’9710.5d contrary to section 390 (5) of the Criminal Code. After being committed for trial by the magistrate he had been released on bail, and when his case came up for trial in the High Court he first pleaded not guilty, and then applied for an adjournment to enable him to instruct counsel, on the ground that he had only received the notice of trial two days previously. Section 349 of the Criminal Procedure Ordinance lays down that unless the court, for good cause, orders otherwise an accused person shall receive at least three days notice of the date of his trial in the High Court, and contains provisions for the case where an accused person has been admitted to bail and cannot readily be found, by enabling the notice to be left with someone of his household or with one of his bail, or to be affixed to the door of his dwelling house. In the present case the judge recorded that “it is clear that the reason why the notice was served late was that the accused left the address which he gave on the recognizance and had to be traced”, and refused an adjournment without inquiring why none of the alternative methods of service had been adopted.

Section 349 is designed for the protection of an accused person and in the view of the Court it must be complied with strictly. It is submitted on behalf of the respondent that by first pleading to the information the appellant must be regarded, under sections 215 and 217 of the Criminal Procedure Ordinance, as having waived any formal objection to the lack of notice and to have had, at most, a ground on which the judge might, in his discretion, have granted an adjournment, but without deciding what the position in strict law may be we consider that in this case the conviction should be set aside as having resulted from a miscarriage of justice, even if there was not technically a mistrial.
The case appears to be a proper one for ordering a retrial, and the order of this Court will be that the conviction and sentence are set aside and that the appellant shall be retried before another judge of the High Court. If the retrial results in the conviction of the appellant the High Court will no doubt take into consideration, in imposing sentence, the fact that the appellant has already served a period of over seven months as a convicted person.


Okon Bassey Vs The Queen (1963) LLJR-SC

Okon Bassey Vs The Queen (1963)

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The appellant was convicted in the High Court of the Eastern Region of Nigeria sitting at Calabar of the murder of a woman called Arit Ante Udeye.,

The facts leading up to the incident in which the deceased was killed may be briefly stated.

In 1959 the appellant married by Native Law and Custom a daughter of the deceased called Nkoyo. After the marriage he, jointly with the deceased, built a house on a parcel of land belonging to the appellant, after which the appellant and his wife, Nkoyo, the deceased and a son of hers cal-led Edet, lived in the house. Some time later Nkoyo gave birth to a child for the appellant. Subsequently the appellant had occasion to go to the Cameroons and during his absence the deceased gave his wife in marriage to another man, who was also given his child. When he returned a portion of the bride price which he had paid was refunded to him. The deceased and her son refused however to return the child to the appellant.

The appellant went to the Cameroons a second time and on his return found that the deceased was storing cocoa and firewood in his room in the house. Moreover the deceased wanted him to leave the house altogether; so he went to the Village Chief and requested him to call a meeting of the deceased and himself with a view to settling their differences. The meeting took place on the following day before the Chief and some Elders at which were present the appellant, the deceased, her son Eder and daughter Nkoyo. After hearing both sides the Chief asked the appellant and the deceased to contribute 1s each as “Judge’s Kola” before judgment could be pronounced. Neither party objected to this and both left apparently to fetch the money. The appellant left first and went to his house. He was joined there by the deceased and her two children. A fight ensured in the sitting room in the course of which the appellant inflicted on the deceased injuries with a knife from which she died almost immediately.

At the trial the appellant pleaded self-defence and provocation and although the learned trial judge accepted his version of what took place in the sitting room, he rejected both defences and, as I have said before, convicted the appellant of murder.

It is against the rejection of these two defences that the appellant appeals. In order to decide whether self-defence and provocation or either of these defences were made out or not, it is necessary to consider the version of the appellant which the learned judge accepted. It is stated in the judgment as follows: –

‘The accused said that he then left the meeting at the chief’s house in order to go home and bring the shilling contribution, and was followed by the deceased, the seventh and the eight prosecution witnesses. When he got to the house, he went into his room, took his pair of shorts in which he kept his money, and went to the sitting room. Here he was when the deceased, the seventh and the eighth prosecution witnesses entered. Suddenly, the seventh prosecution witness closed the door of the sitting room, saying that was going to be the last day he (the accused) would insult their mother, the deceased. All three of them fell upon him as he was still sitting, and began to beat him. They pushed him down and held him to the ground. The seventh prosecution witness held his throat, the deceased held his penis, and the eight prosecution witness was holding him by the waist. It was in these circumstances that he brought out the pen-knife in his pocket, and, acting under extreme provocation and in self-defence, stabbed first the seventh prosecution witness, and then, the deceased. Then the seventh prosecution witness ran and opened the door and fell down there, and the deceased released her grip of his penis. As the eight prosecution witness was still holding his waist, he stabbed her on the head. She then released him. He ran out of the house and went to the police station to make a report.”

As the deceased had four distinct injuries, the appellant explained in cross-examination that after stabbing the deceased once she released his penis, but when she tried to catch hold of it again he struck again three times.

On the question of self-defence, it is remarkable that while the case of Rex V Hussey 18 C.A.R. 160, which is not applicable to this case, was considered, no reference whatever was made to section 288 C.C. which contains the law on self-defence applicable to the facts of this case. Section 286 reads:

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault: Provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he can-not otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”

The appellant was attacked by two women, one of them elderly, and a man. None of them was armed with any weapon. The appellant had a knife which he used on the man, who let go of him, opened the door and ran out. The appellant struck the elderly woman, the deceased, once with a knife and she let go of him and he then struck her again three times when she was at the door of the house.

The appellant received no injuries and was unable to show any on his person. In these circumstances we think that the assault on the appellant was not such as to cause reasonable apprehension of death or grievous harm and that the force used by the appellant was excessive in all these circumstances. The defence of self-defence was consequently rightly rejected.

As regards provocation, the learned trial judge after expressing the opinion that the sudden attack on the appellant in the circumstances described by him would, without doubt, cause a reasonable person of the appellant’s standing in life considerable anger and cause him to strike the deceased once, went on to hold in effect that it did not excuse his continuing “to deal death blows on the deceased now incapacitated for the second, third and fourth times in quick succession.” This is an implied finding that there was time for the appellant’s passion to cool between the infliction of the first injury on the deceased and the other injuries. We are unable to agree . All four blows were delivered within a matter of seconds of each other and if the first blow was, as the learned judge found, given in the heat of passion caused by sudden provocation we cannot see how the other blows can be treated differently. We consider therefore that the learned trial judge ought to have found provocation proved.

We accordingly set aside the conviction for murder and substitute a conviction for manslaughter contrary to section 317 C.C. and we impose a sentence of eight years imprisonment with hard labour.


Ogunte Kuma And Anor V Commissioner Of Police (1963) LLJR-SC

Ogunte Kuma And Anor V Commissioner Of Police (1963)

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The appellants were charged with conspiracy to commit a felony to wit stealing on Count 1, and on Count 2 with stealing the sum of £100 the property of the Ezzikwo County Council contrary to sections 516 and 390 of the Criminal Code respectively. At the conclusion of the trial in the Court of the Magistrate of the Abakaliki Division, the accused persons were convicted on Count 2 and no finding or conviction was made or entered against them on Count 1. An appeal against their conviction on Count 2 to the High Court of the aforesaid Division failed. They have now appealed to this Court from the decision of the High Court.

The 1st appellant was at the material time a Councillor of the Ezzikwo County Council while the 2nd appellant was the Headmaster of the Umuaka Ikwo School. In January, 1961 the Ezzikwo County Council approved of a resolution to pay £200 each to some of its schools, one of such schools being the Umuaka Ikwo School.

A letter was written to this School Committee asking that the names of representatives, to whom payment could be made, be submitted. The names of the two appellants were submitted. A payment voucher was prepared and payment of £200 was made to the two appellants on the 10th February, 1961. The evidence of the Treasurer of the Ezzikwo County Council on this point is as follows:-

“I made payment to the 1st accused in the presence of Dominic Nwuko the 2nd accused. The accused persons signed the payment voucher (exhibit “A”). The 1st accused signed as the recipient while the 2nd accused witnessed the payment”

Prosecution Witness No. 3, Maurice Nnorom, was a contractor engaged to build a four class room for Umuaka Ikwo School at a contract price of £1,300. He was paid in installments. In or around February, 1961, he was informed by the 2nd appellant that a sum of £200 was available and that he should come to collect same. On arrival he was presented with only £100 which he refused to accept. His evidence on this point continues thus:-

“As I was going the 2nd accused called me back and said I should not refuse the money. He said he had £25 in his house to make it up to £125. I then agreed and accepted it. I issued a receipt to the 1st accused.”

A Notice to Produce was served on the 1st accused to produce this receipt, and on his failure to do so, the carbon copy was produced without objection and marked exhibit “C”.

The appellants did not deny that the £200 was indeed received by them from the Ezzikwo County Council, but say that the full £200 was paid over to the 3rd Prosecution Witness and not £100 as alleged by the prosecution. The additional £25 paid to Prosecution Witness No. 3 did not come out of the £200 received as stated above.

The learned Judge on appeal confirmed the judgment of the trial Magistrate, convicting the appellants. Learned Counsel for the appellants argued the original grounds of appeal as well as grounds 1 and 3 of the additional grounds filed on behalf of the 2nd appellant only. The only points of any sub¬stance urged in his arguments and on which we called on Counsel for the Crown to reply raise two points of law:-

1. That the receipt, exhibit “C”, was wrongly admitted in evidence; and

2. That the Ezzikwo County Council were no longer the owners of the sum of £100 as averred in the particulars of the charge.

On the first point, Counsel for the appellants contends that the 1st appellant in his statement to the Police stated that the receipt was given to Councilor Noyo Chukwu, the 5th Prosecution Witness, and therefore the notice to pro¬duce was wrongly issued or served on the 1st appellant; he submitted that it should have been served on the 5th Prosecution Witness. It is clear on the evidence, and in fact the 1st appellant himself admits that the original receipt issued by Prosecution Witness No. 3 was given to him, the 1st appellant. The Police Constable investigating the case, Prosecution Witness No. 7, deposed that the 1st appellant denied all knowledge of the receipt. Prosecution Witness No. 6, a member of the School Committee, said this about payments and receipts made to and received from the contractor, Prosecution Witness No. 3, in respect of the school building:-

“The Committee pay the 3rd P. W. and the receipt is given to 1st accused for safe keeping.”

In our view the notice was rightly served on the 1st appellant and the duplicate receipt rightly received in evidence.

On the second point, learned Counsel for the appellant submitted that once the sum of £200 was paid over to the two appellants for and on behalf of the Umuaka Ikwo School the ownership passed to the latter body with the result that the particulars of the charge in this respect are bad in law.

This point was not raised in the court of trial, but was raised on appeal to the High Court which held that:-

“On this point there was evidence which was even confirmed by the defence that the Umuaka Ikwo School was one of the Council’s schools. In that case it seems to me that the relationship between the Council and the School Committee could not be anything more than that of a principal and an agent. The Council therefore cannot be deemed to have surrendered the ownership of the money when it was paid to the school committee. The particulars of the charge that the £100 belonged to the Council are in my opinion quite proper.”

It is pertinent to note in this connection the wording of the Payment Voucher signed by the appellants and issuing from the Ezzikwo District Council, Exhibit “A”. It reads thus:-

“Head 11B Capital Works. Sub-head 6 Building of U.P.E. Schools Dr to Chief O. Ekuma (Local and School Committee) Ezzikwo County Council School Umuaka Ikwo. 8-2-61 to payment of Grants for the building of Inspiring U.P.E. School Umuaka Ikwo to Chief Ogbunte Ekuma on behalf of his local and School Committee as per attached minutes of F.D.S. Committee, item 644 of 17-1-61 and details in file E.D.C. No. 24/188-191 sum £200-0s-0d.

I certify that the above account is correct, and was incurred under the authority quoted, and that the services have been duly performed, and that the rate/price charged is/are according to regulation/contract or fair and reasonable, and that the account of two hundred pounds can be paid under the sub-head quoted.”

The sub-head quoted above is the Building of the U.P.E. Schools. It seems to us beyond dispute that this sum of £200 was paid to the payees – the appellants – and received by them for the sole purpose and direction that it be used for the building project. On this construction, section 385 of the Criminal Code is relevant. The relevant portion provides that:-

“When a person receives, either alone or jointly with another person, any money … whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, …… shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, …… was received until the directions have been complied with…………..”

On the evidence of the appellants themselves, after receiving this sum of money, the building contractor, Prosecution Witness No. 3, was sent for and informed that the £200 due to him for work done under the Sub-head contained in exhibit “A” was available and that he should come for payment. He was paid a portion of what was due to him which was also a portion of what the appellants had received by virtue of exhibit “A” for a certain purpose which was not carried out. For these reasons we are of the view that the property in the £100 was properly laid in the Ezzikwo County Council and this ground of appeal must fail, and the appeal is accordingly dismissed. The judgment of the Court below is hereby affirmed.


Jubilee Stephen Kwesi Sagoe V The Queen (1963) LLJR-SC

Jubilee Stephen Kwesi Sagoe V The Queen (1963)

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The appellant was convicted on a count of stealing laid under section 390 (8) (c) of the Criminal Code and stating in the Particulars that he: “between the 30th day of June, 1960 and the 4th day of April, 1961, at Lagos stole three thousand pounds (#3,000) which had been received by you for and on account of Fourah Bay College Sierra Leone, now known as the University College of Sierra Leone”
Under a certain will, the Federal Public Trustee had to pay #10,000 to the College. The College sent the appellant a power of attorney to collect the money, and to act as solicitor in the matter, if necessary. He received #7,000 on June the 29th, 1960, and paid it into his private account at his bank, which then stood with a debit of #1’974.7d. On the 2nd July he drew a cheque for ‘a3670, to pay for a car, knowing that it would be met out of the money he had received for the College; and he spent some more of that money. On the 22nd July, 1960, he received the balance of#3000. He went on spending out of the College money.
Writing to the College on 11th July, 1960, the appellant did not mention the fact that he had received #7,000. He sent #7,000 on the 30th August, 1960, but did not inform the College that he had received the balance of #3,000. It was not until the 13th November, 1961, that he wrote to inform the College about his having received that balance; he added that his “fees for handling the transaction is #1,500”. The Bursar of the College wrote asking him for details of how the fees were made up. Things came to a head in March, 1962; the Police stepped in; he stated to them that his fees would be #1,250, that he had sent #250, and would in a week send the #1,500 remaining due to the College. He asked his uncle for a cheque for #1,500 on loan and sent that amount to the fact that he had received #7,000. He sent #7,000 on the 30th August, 1960, but College.

The appellant had not made any agreement on fees; he had no discussion about them, and they were never settled between him and the College. He said he had several interviews with the Public Trustee; beyond that and receiving the money, he did nothing else. That he behaved dishonestly, there can be no doubt: he was spending money he had received for the College, and keeping the College in the dark for as long as he could. The College wrote a number of letters asking about the money; he denied receiving them; but (although there is every reason to think that he must have been receiving and ignoring them) it is immaterial whether or not he received those letters: his plain duty was in July, 1960, to inform the College that he had received all the money and arrange about ms claim of remuneration. Instead of that, when sending #7,000 at the end of August, 1960, he concealed the fact that he had also received the remaining #3,000. He kept on spending out of the money he had received for the College in his bank account, and on the 4th April, 1961, his account stood at #7’9715.8d.

The learned trial Judge (Lambo, J.) did not believe his story that he had over #1,000 in cash in his chambers. One ground of appeal complains on that score; in the Courts view there is no substance in that complaint. The other grounds relating to the facts were not argued.

The main argument is that the appellant, who is a legal practitioner, was acting both as attorney and as solicitor: (a) that he had a right of lien; and (b) that if it was limited to what the College owed him as solicitor, he was not guilty of stealing on the ground that he honestly believed he had a right to spend, and the trial judge erred in his view that the appellant had no right to retain, or, if he had, that this right was limited to what was due to him as solicitor. His learned counsel referred to:-
(1 Section 383 of the Criminal Code;
(2) R. v. Norman, 1842, Car. and M. 501; 174 Eng. R. 608.
(3) Halsbury’s Laws of England, 3rd ed., vol. 36, p.173, para. 237, on Solicitors and their Lien.

That paragraph in Halsbury reads as follows:
“237. Solicitor’s rights. At common law a solicitor has two rights which are termed liens (q). The first is a right to retain property already in his possession until he shall have been paid costs due to him in his professional capacity (r ).. and the second is a right to ask the court to direct that personal property recovered under a judgement obtained by his exertions stands as security for his costs of such recovery (s). In addition, a solicitor has by statute a right to apply to the court for a charging order on property recovered or preserved through his instrumentality in respect of his taxed costs of the suit, matter, or proceeding prosecuted or defended by him”
(The footnotes are not copied).
Presumably it is the first right that is relied upon, and in that respect it should be noted that the lien is for costs due to the solicitor in his professional capacity. Lambo, J. took the view that the appellant did not do anything which could be rightly stescribed as professional solicitor’91s work giving rise to a claim for costs, and could not have any right of lien. The learned Judge also gave an alternative view, namely, that if the appellant had any right of lien, it was limited to what was due to him. This is common sense: one cannot retain #3,000 in its entirety when one’91s claim is for much less. In footnote (m) to para. 238 in Halsbury, at p. 174, it is stated that:
“But, since money is divisible, the solicitor can have a right to retain only such part as is equal to the sum justly due to him”.
On any view, the appellant had no right to retain #3,000.
In passing, it is desirable to note that in the Court’s view learned counsel for the appellant advanced a dangerous proposition: that a solicitor may spend money to which he claims a lien, and if it turns out that the amount he thought he was entitled to was more than was justly due to him, he could refund the excess. His proper course is to have his remuneration settled whether by negotiation with his client or by appropriate proceedings in the first instance.
Subsection (2) of section 383 of our Code provides (in part) that:-
“A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents

(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”

There is also subsecticm (3) to bear in mind, that:-

“The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.”

In R. v. Norman (supra) freight was paid for 215 tons, but the master of the ship retained the portion falling to five tons, alleging that the weight was 210 tons and that it was the custom for the master to retain the excess freight paid. There was no evidence either of weight or of custom. At the trial the judge said that embezzlement involved secrecy, and if a person admitted appropriating some money and alleged a right for retaining it, he was not guilty of embezzlement. Whether R. v. Norman can serve as an authority under our Criminal Code need not be discussed: the facts here are different. The appellant was guilty of secrecy: he concealed from the College for a very long time that he had recieved the balance of ‘a33,000 from the Public Trustee. Had he honestly believed that he was entitled to retain it, he would, when sending the ‘a37,000 at the end of August, 1960, have informed the College that he had also received the balance of ‘a33,000, and made his claim to remuneration; and his claim being  #1,500 or #1,250 (it is not clear which, but be it assumed that it was #1,500), he would have sent #1,500 out of the ‘a33,000 when sending the #7,000. The fact is, however, that he had begun spending out of the College money, and wished to go on using it for his own purposes. On the most favourable view advanced in his behalf, he knowingly stole #1,500 and a portion of the #3,000 stated in the particulars of the charge.
When that became apparent in the course of the argument for the appellant, his learned counsel did not submit that the conviction could not stand. We think it can.

In R. v. Tyson, 11 W.A.C.A., 90, the defendant was tried on a count which alleged that he had stolen twelve permits; the trial judge gave him the benefit of the doubt on nine, but was satisfied on three, and convicted him of stealing on the count as it stood. It was argued in his appeal that the conviction could not stand, but it was upheld on the ground that it was a divisible charge, and he could be convicted on part of it. The Court of Appeal referred to a passage in Archbold, which can be found in paragraph 1526 of the 1962 edition; it reads:-

“It is not necessary that the prosecutor should prove all the articles mentioned in the indictment to have been stolen; if he proves the prisoner to have stolen anyone of them, it is sufficient.”
Archbold does not say that the indictment needs amendment. Money is divisible, and the like reasoning applies to a count which alleges the theft of #3,000, if it is proved that the defendant stole #1,500 of the amount alleged. For example, in R. v. Williams, 1834, 6 Car. -and P. 626, 172 E.R. 1393, the defendant was charged with embezzlement of a certain amount; upon its appearing that it was made up of several items, the presiding judge, after consulting the Judges in the next court, told the prosecutor that he must make his election and confine the evidence to one item; the defendant was convicted. There is no suggestion in the report that there was any amendment of the charge. In recent years, there was the case of R. v. Lawson, 36 Cr. App. R. 30. The defendant was a solicitor; she was accused on several counts of fraudulent conversion of her clients’ moneys, each count alleging the amount of the general balance appearing due to a particular client. After hearing argument, Lynskey, J. said at p.37,

“In a case of this kind, if the jury accept the evidence, it seems to me that there is ample material on which they can find that there was a fraudulent conversion of part, at least, of the property named in each count on one date.. In my opinion, this is a proper case for the indictment to go forward in this form. ”
(We have underlined the words bearing on the point in hand.) That ruling was approved by the Court of Criminal Appeal in R. v. Tomlin, 38 Cr. App. R. 82 at p. 89; [1954] 2 Q.B. 274, at p. 281; it will be enough to quote this sentence:
“On the view taken by the jury there was clearly a conversion, or rather an embezzlement, of one part of the aggregate at one time.”
There is no suggestion that the indictment needed amendment, or was amended at any stage in either of those cases. We conclude (although without the benefit or argument on either side) that when a person is charged with stealing (to use the appropriate term in the Criminal Code) and the evidence proves that he was guilty of stealing a part of the amount of money alleged in the Particulars of the charge or count, he may be convicted without amendment of the amount alleged. Consequently, without dissenting from Lambo J., whose finding was that the appellant stole the entire #3,000, we think there is no need to discuss the soundness of his finding, as on the most favourable view advanced for the appellant, he was guilty of stealing #1,500 of that amount, and the conviction can stand.
The learned trial judge passed a term of three years on the appellant; his learned counsel has asked that his appeal against sentence be allowed, on the ground that he is bound to be dealt with professionally. The disciplinary measures which may follow are not to be regarded as additional punishment: they relate to his fitness to continue being a member of an honourable profession; and they have no bearing on the sentence passed on the appellant for stealing.
The appeal against conviction is dismissed; and leave to appeal against sentence is refused.


Victor L. L. Coker Vs Victoria A. A. Coker (1963) LLJR-SC

Victor L. L. Coker Vs Victoria A. A. Coker (1963)

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This appeal is by the husband, who complains against the order made by Udo-Udoma, J., in the Lagos High Court, on the 7th January, 1963, on the wife’s application of permanent maintenance, which the learned judge granted.

At the hearing, it was objected on the wife’s behalf that as no leave to appeal had been obtained from what was an interlocutory order, the appeal could not be entertained. The Court was referred to the notes in the White Book below 0.58, r. 4; there is the case of In re W.- (Infants) [195611 Ch., 384, in which it was decided that an order like the one in hand was an interlocutory order; and there is Bellenden (formerly Satterthwaite) v Satterthwaite [ 1948] 1 All E. R. 343, the report of which shows that the appeal was brought as an appeal from an interlocutory order.In Ude and others v. Aga and others, (1961) 1 All N.L.R., Part 1, p. 65; [1961] 1 S.C.N.L.R. 98, the Federal Supreme Court decision is that the proper test is to look at the order made; if it finally disposes of the rights of the parties, it ought to be treated as a final order; if it does not, it is an interlocutory order.

In this case the order is –

“That the respondent do pay to the petitioner the sum of £20 per mensem by way of permanent maintenance during the joint lives of the petitioner and the respondent or until the petitioner remarries or until further order”.

The words “permanent maintenance” might be invoked for saying that it is a final order; but that is whittled down by the words “or until further order”. We think that we may safely take the view obtaining in England, that this type of order is interlocutory There was really no argument on the husband’s behalf.

His learned counsel referred us to 0. 1, r.5, of the Federal Supreme Court Rules, which provides that-

“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.”

That relates to time and procedure: here we are concerned with the question whether the husband could appeal as of right under some provision made in that behalf by the legislature; but no such provision was referred to.

We must therefore rule that there is no appeal properly before the Court, and strike out what purport to be proceedings of appeal. They are struck out with ten guineas costs to the wife, the respondent in the proceedings.


Rebecca Amankra V Latey Zankley (1963) LLJR-SC

Rebecca Amankra V Latey Zankley (1963)

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The defendant appeals from the judgment of Dickson J. dated 13th March, 1961, in the Lagos High Court suit No. LD/30/1959, which grants the plaintiff a declaration of title to a certain piece of land.Part of the plaintiff’s case is that it was conveyed to him on 29th August, 1957, by deed, which was delivered for registration at 11 o’clock a.m. on the 16th September, 1957, and registered as No. 34 at page 34 in volume 1093 of the Land Registry Office at Lagos. The vendor is Charles Olusola Togonu Bickersteth, and the purchaser the plaintiff. It is exhibit H in the record.

The defendant relies mainly on exhibit W, a conveyance between the same vendor and one Adekunle Coker as the purchaser, which is dated the 16th May, 1957; it was delivered for registration at 11.40 a.m. on the 17th March, 1960, and registered as No. 67 at page 67 in volume 1159 of that Registry.

The argument for the defendant in her appeal is that, as the vendor had conveyed the legal estate to Coker in May, 1957, he had divested himself of the legal estate and had it not any more, so he could not convey it to the plaintiff in August, 1957: nemo dat quod non habet. The argument for the plaintiff had been in the court below, that the defendant had lost priority by virtue of section 16 of the Land Registration Act, cap. 99.

The long title of that Act is

“An Ordinance to consolidate and amend the Law relating to the registration of instruments and the filing of judgments affecting land in Nigeria.”

It is not an Act for the registration of title to land; but it contains sanctions for failure to register and for delay in registration, in sections 14 to 16. Section 14 relates to Crown grants and certain other instruments with which we are not concerned here; they become void if not registered within a certain time, which, however, may be extended for good cause.

Section 15 provides that

“15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3: Provided that etc.”

Of section 16 it is enough to copy subsection (1):

“16. (1) Subject to the provisions of this Ordinance, and in particular of subsection (2) of this section, every instrument registered under this Ordinance shall, so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration as hereinafter defined in the proper office as specified in section 3, and every instrument registered before the commencement of this Ordinance shall be deemed to have taken effect from the date provided by the law in force at the time of its registration.”

In the normal case, a person who receives a conveyance takes it to the Registry, where the time and date of his delivering it is certified; if all is well, it is registered, and the registration is taken to be at the time and on the date certified as that of delivery: section 17. If registration is refused, a note of “registration refused” is made; in case of subsequent delivery for registration, the time and date of it are certified, and if the instrument is registered, they become the hour and date of registration: section 18. The precise hour and date of delivery, or subsequent delivery, are of supreme importance for the purposes of section 16. They are of supreme importance to a person who makes a search for his guidance.

Section 28 states that

“28. The registrar shall allow searches to be made at all reasonable times in any register book, register or file of registered or filed documents in his custody.”

If there is nothing to show that his vendor has conveyed the land, he presumes that the vendor has not conveyed it, and goes ahead. Clearly, although the Ordinance or, as it should here be called, the Act, does not relate to registration of title, but of instruments, it is plainly intended to give some measure of security and some protection against fraud. When two persons claim the transfer of a legal estate, he who did not register his conveyance cannot plead it or give it in evidence; if they both registered their deeds, each takes effect as against the other from the date of registration; which means that the one executed earlier loses its priority if it was registered later. What counts is the date and hour of registration.

The argument for the defendant, if correct, would open the door to fraud. Suppose that A. conveys by deed his land to B.; they could connive to cheat C. by delaying registration; A. could convey the same land to C., who would search in the Land Registry but find nothing about the earlier conveyance to B. Or suppose that A. conveys his land to C.; A. and B. could connive to cheat C. by A. giving B. a deed with an earlier date than the deed he had given to C. The latter case is forgery; both are conspiracies to defraud; either has to be strictly proved as if it were a criminal charge, which might not be easy.

It is desirable to give some protection against fraud and facilitate dealings in land; it is done by such provisions as those in section 15 and section 16 of the Act. In our opinion, they were intended to make an instrument requiring registration ineffectual unless and until it was registered; and for the better protection of honest people, the date and hour of registration is the date and hour of delivery to the Registrar, who is enjoined to certify it immediately on the instrument and the copy thereof delivered to him: section 17 (2).

In the present case Bickersteth gave a deed to the plaintiff dated the 29th August, 1957; his date of registration is 16th September, 1957, and this is the date on which the transfer of the legal estate to him took effect. Bickersteth gave Adekunle Coker a deed dated the 16th May, 1957; and it did not and could not take effect as a transfer of the legal estate until the 17th March, 1960, the date of the registration of this deed. The plaintiff has the earlier effective transfer and wins.

Mr. Coker, the learned counsel for the defendant (the appellant), has argued by reference to the position in contract law. Some contracts require a memorandum in writing; if there is no memorandum, evidence of the contract cannot be given, but the contract is not void. He submits that the position is similar: if X gives Y a deed but it is not registered, it cannot be given in evidence, but it is not void. If Y registers the deed, it can be given in evidence; and in the present case one can then see that the deed given to Adekunle Coker was earlier in date, and that consequently Bickersteth could not convey the same land to the plaintiff by a later deed. That is the argument.

It may be assumed that failure to register a deed such as that given to Coker does not make the deed void; and that presumably is the reason why it may be registered at any time apparently. But besides section 15, there is section 16, and some meaning and effect must be given to it. We asked the learned counsel to suggest some example of how section 16 could operate and yet not defeat the defendant’s case. The example he gave was one which involved criminal collusion on the part of the registrar.

The learned counsel also drew attention to the opening words of section 16 (1), which are “subject to the provisions of this Ordinance”; and he referred to section 25 of the Act, which provides that:-

“25. Registration shall not cure any defect in any instrument or, subject to the provisions of this Ordinance, confer upon it any effect or validity which it would not other wise have had.”

The argument is the same as before: that the conveyance to the plaintiff gave him a defective title, or no title at all, on the ground that the vendor had conveyed the legal estate to Adekunle Coker by an earlier deed. That argument assumes – what is not true – that the deed given to Coker conveyed the legal estate on the day of its execution: it did not. In cumbrous language, the deed given to Adekunle Coker purported to convey the legal estate to him on that day, but did not effectually transfer it. Again, when later Bickersteth gave a second deed to the plaintiff, he purported to convey the legal estate to him; in his case the transfer became effective upon registration and endured to his benefit by the fact of earlier registration.

In section 25 the words “subject to the provisions of this Ordinance” bring in subsection (1) of section 16 and in-corporate its operation on competing deeds of conveyance.So far as we know, this is the first time that section 16 has come up for decision.

Mr. Coker said that registration did not operate as notice to the world, according to a decision of the Federal Supreme Court. He did not cite it, and we must presume that it does not help his argument.It is ordered as follows:

That the appeal of the defendant from the judgment of 13th March, 1961 in the Lagos High Court Suit LD/30/1959 be and the same is hereby dismissed with costs of appeal assessed at thirty guineas payable by the defendant Rebecca Amankra to Latey Zankley, the plaintiff in the suit.  


Onashile Vs Barclays Bank (1963) LLJR-SC

Onashile Vs Barclays Bank (1963)

LawGlobal-Hub Lead Judgment Report


This appeal by Mr. Onashile requires a short summary of the events which led to it.

Mr. Onashile gave Barclays Bank a legal mortgage of some land of his, to secure his overdraft. The Bank did not apply to have the legal estate registered under the Registration of Titles Act. He was remiss in repaying, and in due course the Bank, exercising a mortgagee’s power of sale, sold and conveyed the mortgaged land to two purchasers, but Mr. Onashile refused to let them have possession. He sued claiming that the Bank’s omission to apply for registration of title made the transfer of the legal estate void; the purchasers and the Bank sued for possession; and the suits were consolidated. The attitude of the Bank was that a legal mortgage was not caught in section 5 of the Registration of Titles Act.

The High Court of Lagos decided in favour of the Bank and ordered possession.

The Federal Supreme Court allowed Mr. Onashile’s appeal; the judgment is reported in [1961] 1 All N.L.R., 313; at p. 317 it reads

“It follows that this mortgage should have been registered under section 5 of the Ordinance. It has therefore become void insofar as it purports to convey the legal estate and the purported sale under the Conveyancing Act is also void to this extent.

I would accordingly allow the appeal and set aside the order for possession and mesne profits, and the order for costs. The appellant is entitled to costs both here and in the Court below, and I would assess these costs at a total of ninety guineas.”

That was the judgment of the Court. The Bank applied for leave to appeal to the Privy Council, but gave it up.

Some time later, the Bank applied to the High Court for extension of the time within which the Bank might apply for registration as the owner of the fee simple; and the affidavit in support states that the only reason why the Bank had not applied for registration was that ever since 1936, when the Act came into force, it was assumed that a legal mortgage did not originate registration. Mr. Onashile opposed the application. Evidence was heard to the effect that before that judgment was given the Registrar of Titles did not accept mortgages for registration. Onyeama J. thought the Bank had shown sufficient cause, and made an order granting an extension of time; and this second appeal by Mr. Onashile is against that order.

The relevant provisions are in section 5 of the Act, of which it will be enough to quote the following portions

“Every conveyance of a fee simple estate in any land for a consideration which consists wholly or in part of money ……….. executed after the creation of the registration district in which the land is situated, shall on the expiration of two months from the date thereof or of any authorised extension of that period, be-come void so far as regards the grant or conveyance of the legal estate ………… unless the grantee ………… or his success or in title or assign has in the meantime applied ………….. to be registered as the owner of the fee simple………….

Provided always that the court may, on the application of any persons interested in any particular case in which the court is satisfied that the application for registration cannot be made within the said period, or can only so be made by incurring unreasonable expense, or that the application has not been made within the said period by reason of some accident or other sufficient cause, make an order extending the said period; …………”

It is under the latter part of the proviso that the period of two months was extended.There is no need to state the objections to the order in detail: for in our opinion the decision in the first appeal, that the mortgage had become void insofar as it purported to convey the legal estate, finally closed the door on any application for extension of the prescribed period. For the Bank it is argued that that decision did no more than set aside the High Court order for possession. It is true that the Federal Supreme Court decision did that; but the ground and foundation for doing it was that the mortgage had become void to the extent aforesaid.

The other argument for the Bank is that when the period of two months has expired, the conveyance automatically becomes void as regards the legal estate by operation of law, but the court may, nevertheless, by virtue of the proviso, grant an extension of that period and enable the mortgagee to apply for registration of the fee simple estate.

The deduction to be drawn from that argument is that these words, namely

“It (viz. the mortgage) has therefore become void in so far as it purports to convey the legal estate” merely stated the position which resulted under the enacting clause of section 5(1) from the failure of the Bank to apply for registration within two months from the date of the mortgage, and did not close the door on an application for an extension of that period.

The enacting clause provides that the conveyance “shall on the expiration of two months from the date thereof or of any authorised extension of that period, become void…….. unless the grantee ……has in the meantime applied …. to be registered…….”

Those words, “in the meantime”, signify before t expiration “of two months from the date thereof or of any authorised extension of that period”. It is noteworthy that the proviso speaks of “the said period”, meaning the period of those two months. If it had been intended to make the conveyance automatically void when the two months were up, then, instead of the words “in the meantime”, we would have had the words “within that period” or “within the said period”. The words “in the meantime” should therefore be understood as meaning either the period two months or the authorised ex-tended period, as the case may be. Where the period is extended, it is only after the extended period runs out, without an application to be registered having been made, that the mortgage becomes void as regards the conveyance of the legal estate.

An example will be useful. (For convenience, the second proviso to section 5(1), which confers a restricted power of extension on the Registrar of Titles, is ignored.) Suppose a legal mortgage dated the 1st October, 1963; the mortgagee’s application to be registered will normally be received by the Registrar if delivered not later than the 1st December. For delivery after that date a court order of extension will be needed. If the court refuses to grant such an order, the mortgage becomes void to the extent aforesaid; if extension is ordered -say to the 1st March, 1964, the mortgage does not be-come void until the 1st March arrives without an application to be registered having been made.

An application for extension of time may be made to the court at any time; and it is possible to have an order-

(a)before the two months are up; in the above example, say on the 15th November, or

(b)after the two months are up; in the above example, say on the 15th February.

In case (a) the period of two months is extended before it runs out; the time within which the application to be registered can be made flows on, without any break or halting on the 1st December, down to the 1st March, 1964, and is a continuous period beginning with the 1st October, 1963 and ending with the 1st March, 1964. The argument for the Bank, that the mortgage becomes void as a conveyance of the legal estate at the end of the two months assumes that the time within which a grantee may apply to be registered terminates at the end of the period of two months: it does not if the period is extended.

Section 5(1) and the proviso to it do not differentiate between case (a) and case (b). If an extension is ordered after the two months are up, again it is an extension of the period of two months; again the time within which application may be made to the Registrar of Titles is extended and flows on as a continuous period. That is the force of “an order extending the said period”. In the example given, the period within which application to be registered can be made is again from the 1st October, 1963 to the 1st March, 1964. The argument for the Bank overlooks the force of the word “extension”. If an elastic piece of rubber two inches long is stretched to five inches, it is still one piece: it is not one piece of two inches plus another piece of three.

That argument means that after a mortgage has become void, it is revived by a court order of extension of time and given fresh validity. The language used by the legislature does not compel or lead us to take that view. It was doubtless in mind that good cases of delay might well arise; to create a position in which the mortgagee or his successor in interest, although not to blame for not applying within the two months, finds that his mortgage had become void when the two months were up, might have unfair consequences; our interpretation yields a fair position, and we believe that it is right.

If the mortgagor sues, claiming, as Mr. Onashile did, that the mortgage had become void, to the extent laid down, at the end of the two months, he would have to serve his writ of summons on the mortgagee, who could plead that there was sufficient cause for not applying to be registered within the two months, and could also apply to the court for extension of time; where-upon the suit and the application would be consolidated, and the court would decide whether to grant the claim in the suit or to make an order of ex-tension of time.

If the court decides that the mortgage became void as a conveyance of the legal estate, there is no longer a conveyance of a legal estate which the mortgagee can apply to have registered, and an order for extension of the time within which to apply can serve no useful purpose. That is the position here. It would be idle to speculate now on what the Federal Supreme Court might have done if there had been, as part of the case on appeal before it, an application by the Bank for extension of time on the ground of the mistaken view held by the Registrar – a view which could have been canvassed and decided by the courts by appropriate proceedings: there was no such application before that Court, and, in view of that Court’s decision, no such application could thereafter be entertained.

It is ordered as follows:

That the order made by the High Court of Lagos on the 28th March, 1962 in Suit No. LD/45/1960 be and the same is hereby set aside with costs here and below to be paid by Barclays Bank D. C. O. to S.T. Onashile assessed at fifty guineas in all.


Golden Mgbemene And 2 Ors Vs Inspector General Of Police (1963) LLJR-SC

Golden Mgbemene And 2 Ors Vs Inspector General Of Police (1963)

LawGlobal-Hub Lead Judgment Report


This appeal is from the judgment given by Savage J. in the High Court of the Eastern Re¬gion on the 4th December, 1962, reversing the decision of the Magistrate, who had acquitted the appellants, and sending the case back to him with a direction to convict and sentence the appellants.

The charge against them is in these terms:

“That you, Golden Mgbemene, Okwara Emole and Agu Okoroji on the 24th day of April, 1962, at Mile 2 Diobu in the Port Harcourt Magisterial District, being members of the Port Harcourt Municipal Council, did accept for yourselves a bribe of £60 from Benedict Agba and Samuel Ogaju that their conservancy contracts may not be terminated which favour you are to show in exercise of your function as Councillors of the said Council and thereby committed an offence punishable under section 43 (1) of the Eastern Region Local Government Law No. 17 of 1960”.

The subsection last mentioned reads as follows:

“A member of a council, member of a committee of a council or servant of a council who accepts, claims or obtains or agrees or attempts to accept or obtain for himself or for another person a gratification, advantage, bribe or reward, whether in money or otherwise, for doing or forbearing to do an act which he is authorized or required to do in the exercise of his authority or function as a member of a council, as a member of a committee of a council or as a servant of a council, as the case may be, or for corruptly showing favour or disfavour to a person, is guilty of an offence: Penalty, imprisonment for three years or a fine of two hundred pounds’.

The learned Magistrate found on the facts against the appellants, but for sundry reasons acquitted them.

The foremost of them is that in his view the offence contemplated in section 43(1) is that of a gift in consequence of the Councilor having done something already, not of a gift for the sake of something to be done by him later. For his view he relies on the decision in R. v. Ibrahim, 20 N.L.R. 137, on the meaning of section 115 of the Criminal Code, which provides that:

“Any person who accepts, or obtains, or agrees to accept or attempts to obtain, from any person for himself, or for any other person, any gratification or reward whatever, whether in money or in kind, for inducing by corrupt or illegal means, or by personal influence, any native tribunal or any member thereof, to do or forbear to do any act which such native tribunal is authorized to do in the exercise of its jurisdiction or to show favour or disfavour to any person is guilty of a misdemeanour, and is liable to imprisonment for two years.”

The interpretation in Ibrahim was that the wording meant a reward for actually inducing the tribunal or for the act of inducing as an act already done. It relied on the words “gratification” and “reward” in that section as indicating a return for something done already; it also compared that section with other sections of the Code. That decision was a decision at assize; it is not binding, and remains open for argument in our court when a case under that section arises. It may be right in the light of its own wording and in the context of the Criminal Code: it is not a safe guide in interpreting the subsection under which the present charge was laid. This must be interpreted in the light of the Law in which it is found and of its own wording and, as Savage J. pointed out, with due regard to the word “bribe”, which does not occur in section 115 of the Criminal Code.

“Bribe” is defined in the Shorter Oxford English Dictionary in the words of Dr Johnson’s Dictionary, as “a reward given to pervert the judgment or corrupt the conduct”, which means that it is a gift for the sake of something to be done by the recipient afterwards. In the Concise Oxford Dictionary of Current English, “bribe” is defined as –

“Money etc, offered to procure (often illegal or dishonest) action in favour of the giver” -which, again, means future action. It becomes imperative to understand the words-

“bribe ………….. for doing …………an act”

in the subsection under discussion as meaning a corrupt gift for the sake of an act to be done afterwards.

The next question is whether the other words are obstacles to that meaning. In its context “advantage” merely means a benefit, and throws no light on the present question. “Gratification” is defined in the Shorter Oxford English Dictionary as “a reward, recompense, gratuity; a bribe”; with the meaning of bribe, the word “gratification” is no impediment. There is also the term “reward”, which looks formidable. Its normal meaning, as given in that Dictionary, is this:

“A return or recompense made to, or received by, a person for some service or merit, or for hardship endured.”

It connotes that something has already been done, and the reward is given afterwards in return for it. That looks like a formidable obstacle ; but there are considerations which remove the difficulty.

As already noted, the Shorter Oxford English Dictionary adopts Dr Johnson’s definition of “bribe” as “a reward to pervert the judgment or corrupt the conduct”. “Reward” is not inappropriate when the matter is viewed in this light: suppose a contractor says to a councillor, will you help me to secure such and such a contract; a corrupt councilor will say, I will help you, but I must have something; whereupon the contractor may well say, here is a pound by way of reward -that is to say, in return for the councilor’s promise or agreement to help him. In that light, “reward” is appropriate in the definition of “bribe”, and one must bow to the high authority of Dr Johnson. It turns out that “reward” is no impediment.

Moreover, the councilor is guilty if he “agrees … to accept … a …reward”, which can mean a reward after he has done his part of the bargain. A wary contractor may well say, I will reward you if I get the contract; and the councilor may agree to wait for his reward. That would be a corrupt bargain.

The remaining point is the tense of the verbal term “doing” in section 43 (1) of the Eastern Region Local Government Law. Does it refer to the future? Does it mean “in order to do an act later”? It does. There are paragraphs (g) and (h) in subsection (1) of section 51 of that Law to show that it does: they read –

“51. (1) Subject to subsection (2), a person who –

“(g) being a voter, directly or indirectly, by himself or by any other person on his behalf, before or during an election, receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place, or employment, for himself or for another person for voting or agreeing to vote or for refraining or agreeing to refrain from voting at that election.

(h) after an election, directly or indirectly, by himself or by another person, on his behalf, receives any money or valuable consideration on account of a person having voted, or refrained from voting, or having induced another person to vote or to refrain from voting, at that election.”

Plainly in (g), the words “receives ………… any money ………… for voting” mean “for voting afterwards”, or “in order that he shall vote”; which is clear from the words “before or during an election”. In (h) it is receiving any money after an election, “on account of a person having voted.”

The Court is of opinion that in section 43(1) the meaning is, for the sake of a future act or forbearance, favour or disfavour.

It may help those concerned if they look at section 1(1) of the English Prevention of Corruption Act, 1906, for a model in drafting a provision on corruption; and perhaps those who are reviewing the relevant sections in the Criminal Code, which have given endless trouble, may find it helpful. Incidentally, the wording used there lends support to the interpretation given in the present case. Reference may also be made to the case of Carr [1957] 1 W.L.R. 165,40 Cr. App. R. 188; [195613 All England Reports 979.

On the first point the appellants fail: the provision under which they were charged sustains the allegations in the Particulars of the charge.

The second point is that, in the Magistrate’s view, the charge is defective in that it does not describe the appellant’s duties. We agree with Savage, J., that it is not defective in that regard. The Particulars speak of their being members of a certain municipal council and of conservancy contracts. Section 84 of the law shows, in items 33 to 45, that public health and conservancy are matters within the duties of municipal councilors.

Finally, there is the point that the word “corruptly”, which occurs in section 43(1) before the words “showing favour”, does not occur in the Particulars of the charge. The Magistrate thought that omission made the charge bad; Savage J. thought that the word “bribe” in the charge was sufficient to connote corruption. We take the view that the charge was good. In the language of the law, the word “bribe” always means an unlawful gift or offer as a means of corruption, the essence of which is that the gift or offer should operate on the mind of the person to whom it is offered to make him do a certain act. That person is expected in the public interest to carry out his duties honestly and impartially, unswayed by considerations of benefit; for these are apt to deflect him from the path of integrity.

The words in the charge – “a bribe …………… that their conservancy contracts may not be terminated which favour you are to show in the exercise of your function as councilors” -convey the sense of “corruptly”.

The appellants cannot say they were embarrassed or misled by the omission of that word from the Particulars of the charge: they were told plainly enough that they were accused of corruption.

The Court had occasion in Reg. v. Enebiene Ijoma, F.S.C. 309/1961; [1962] 2 S.C.N.L.R. 157, to consider whether the absence of the word “false” from the Particulars of a count of uttering laid under section 468 of the Criminal Code, which speaks of a “false document”, made the count invalid; the Court said in its judgment (delivered on 7th July, 1962) that it did not. Likewise here, the omission of the word “corruptly” did not make the charge bad in law.


Samuel A. Adewusi V The Queen (1963) LLJR-SC

Samuel A. Adewusi V The Queen (1963)

LawGlobal-Hub Lead Judgment Report


The appellant, who was charged on five counts of stealing various amounts, was eventually convicted on the 4th count, particulars of which read as follows:-
“Samuel A. Adewusi (M) between the 23rd day of September, 1961 and the 20th day of January, 1962 at Ibadan in the Ibadan Judicial Division, stole the sum of #4,148’18s.8d (four thousand one hundred and forty eight pounds eighteen shillings and eight pence) property of Brandler and Rylke Ltd.”
At the hearing an amendment was sought and granted to substitute as owner of the money “Idanre District Council” in place of “Messrs Brandler and Rylke Ltd.”
The appellant was chairman of the Idanre District Council. There is a committee of the Council known as the Social Development Committee. This Committee, it would appear, was anxious to develop the Alade market. The Council therefore gave discretionary power to the Committee to sell 2,000 permits to fell timber in the Idanre forest in order to raise money for the project. The appellant as Chairman of the Council offered Messrs Brandler and Rylke a permit to take 1,000 trees at #512s.6d pertree flat but adjustments to be made later when the species of trees felled were ascertained. The firm accepted the offer and a cheque bearing the date 8th September, 1961, for #5 ,6250s.0d, was made out in favour of Chief S. A. Adewusi, Chairman, Idanre District Council. On the 9th September the appellant paid the money into his private account at Barclays Bank D.C.O., Thadan, where he had a credit balance of only #109s.9d on that date. On the same day the appellant issued three different cheques for a total amount over #500 which he utilised for his own personal needs. He continued to utilise the money for his own purposes and by the 20th January, 1962 he had a credit balance of only #7515s.8d left in his account.
Meanwhile, on the 9th September, 1961, the Council had decided to defer the issue of the permits to fell timber, and on the 20th September a letter was written to the appellant, by the Secretary to the Council, to suspend action as to the sale of permits because the Forestry Officer did not approve of the scheme and had suggested an alternative plan. The appellant, however, had acted before this change of attitude and had already been paid the sum of #5,625.
On the 22nd October, 1962 the appellant was charged for stealing the amount, since it was not paid over to the Council or to the Social Committee, nor returned to the firm of Brandler and Rylke Ltd. It would appear, however, that on divers occasions the appellant paid in all to the servant of the firm (Brandler and Rylke) a sum of #1,2097s.6d. which amount was paid to the Council for some 250 stumps of timber on different permits later issued to the firm by the Council.
The two grounds of appeal argued before us can be succinctly put as follows:-
(i) That the learned Judge erred in convicting the appellant on the charge because the money alleged stolen was not the property of the Idanre District Council but that of the firm of Brandler and Rylke
(if) The firm did fell some trees in part satisfaction of the amount of #5,625 paid to the appellant, and that the Judge has failed to take this into account.
It seems convenient to dispose of the second ground first. There was clear evidence that the firm later applied for and was given different permits by the Idanre Council. The timber taken by the firm was in respect of these permits. payments which were made to the Council by the firm’s agent, who collected some money from the appellant, was in respect of trees felled in respect of these permits which had nothing to do with the permits for the 1,000 trees.
The argument presented to us on the 1st count was that the #5,625 stolen was the property of Messrs Brandler and Rylke Ltd. and it had not passed to the Council. We feel unable to agree with this submission. The cheque was made out in the name of the appellant as Chairman of the Idanre District Council. This amount he paid into his own private account which stood on that date at #3109s.9d. No effort was made by the appellant to pay it into the Council’91s account, although it was clear the money was paid for permits bought from the Council. On the 9th September, 1961, the day the appellant paid the money into his own account, he started to spend it and he continued to spend it for his own purposes. When he became aware, on the 20th September, 1961 that the Council had decided not to proceed with the scheme he had spent a portion of the money. It was clear to the appellant that he received the money for the Idanre District Council as the forwarding letter from the firm of Brandler and Rylke (Exhibit G) shows.
Section 328 of the Criminal Code, Western Nigeria, Cap. 28 enacts:-
“When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.”
The argument put to us by Counsel for the appellant was that the money is the property of Messrs Brandler and Rylke and that the information as laid in the name of the Idanre District Council was bad. In our opinion, where a person receives money or goods for or on account of another, within the meaning of section 328 of the Criminal Code, and converts the money or part of it to his own use, he will rightly be convicted of stealing the money or goods, the ownership of which, in our view, is in that other. In our view, it is clear that the money is the property of the Council, and it is not necessary nowadays, except in a few cases, to allege or prove who is, in law, the owner of the goods or money stolen; indeed in an information, although it is the practice to do so it is not essential to name any person in the information. In a case of stealing golf balls, Hibbert v. McKiernan, Goddard, L.C.J., said:-
“In the present case any difficulty might have been avoided by describing the balls, or at any rate seven of them, as the property of persons unknown, and at the present day allegations concerning the ownership of stolen property are, except in a few exceptional cases, treated as immaterial” .
Obviously what Lord Goddard said depends upon rule 6 of the Indictment Rules, 1915, which is now our Sec. 154 (1) of the Criminal Procedure Ordinance, which reads:-
“The description of property in a charge shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.”
The 3rd Schedule to the Criminal Procedure Ordinance, however, dealing with forms of indictment for stealing at p. 1012 Vol. II of the Laws of the Federation, shows that the owner is usually named or should be named. The position can be put thus: where the owner of the property is known, it is more satisfactory if he be so named in the information; if the owner is not known, the charge should be laid as the property of persons unknown.

In the instant case we are satisfied that the amended information stating the ownership of the money as the Idanre District Council is correct, and this ground of appeal also must fail.
The appellant therefore, in our opinion, was rightly convicted and this appeal is dismissed.
APPEAL from the High Court of Western Nigeria.


Iyede Nwango Vs The Queen (1963) LLJR-SC

Iyede Nwango Vs The Queen (1963)

LawGlobal-Hub Lead Judgment Report


The appellant filed a petition against his wife in the court below praying for the dissolution of their marriage on the grounds of his wife’s adultery with the co-respondent and cruelty. The respondent cross-petitioned for the dissolution of the marriage on the same grounds of adultery and cruelty and cited one Clementine Ngori Usuma as the woman with whom her husband committed adultery. Both the petition and the cross-petition were dismissed by Mr. Justice Coker on the 18th day of August, 1961.

According to the evidence before the court below, the relationship between the two spouses at the material time had become very bad. Then, on the 28th May, 1960, the petitioner came to Lagos from Ibadan. On his arrival, he received certain information concerning his wife and, in consequence of it, started to look for her.

At about 1.30 a.m. he returned home to 39 Jebba Street, Ebute Metta, where his wife was living with his mother but found that his wife had still not returned home. At about 2.30 a.m. an Opel Kapitan saloon car drew up in front of the house and both the respondent and the co-respondent came out of it and walked towards the house. At the entrance to the house, the co-respondent embraced the respondent and kissed her. The appellant attacked the co-respondent and a fight ensued.

The petitioner’s witness, Comfort Taiwo, held the petitioner and took him into the house. She then went back outside and entreated the respondent to go into the house. According to the witness, the respondent was very drunk. She abused her husband, told him that she had had sexual intercourse with the co-respondent and said that he could please himself. The witness left the respondent because she was drunk but some four days later she called both the respondent and the petitioner together and advised the respondent to go back with her husband to Ibadan and consider the interest of their children. Both of them refused to come together again and the respondent said that she had already had five children by the petitioner and that she was going to have children for the corespondent.

We shall not deal with the evidence of both the petitioner and the respondent in respect of their counter-allegations of cruelty against each other, or the wife’s allegations of adultery against the husband because in the case of the petitioner he abandoned the ground of appeal dealing with cruelty and in the case of the respondent, because there is no cross-appeal by her against the decision and because the learned Judge found that even if the petitioner had been guilty of adultery the respondent had condoned.

Four other grounds of appeal were filed and argued by the petitioner/appellant and these are as follows:-

1. The decision is against the weight of evidence.

2. The learned Judge misdirected himself in law by not holding the admission of adultery by the respondent against her even though the said admission was accepted and believed by the learned Judge.

3. The learned Judge misdirected himself in law on the questions of familiarity and opportunity required to establish adultery and erred by holding on the evidence before him that no opportunity existed for adultery to be committed.

4. The learned Judge erred in law in dismissing the petition because both parties (i.e., the petitioner and the respondent) were at fault.

The co-respondent was represented at the hearing of this appeal but the respondent did not appear either in person or by counsel.

Before dealing with the arguments addressed to us, it will be useful to refer to some portions of the judgment of the learned Judge. They are as follows:

1. “The respondent was a very difficult witness and gave her evidence in an indifferent and nonchalant manner. I think the relationship between her and the co-respondent was of an entirely different nature from that described by her. Even if the co-respondent was a friend of her family that position is not inconsistent with the relationship described by the petitioner. I accept and prefer the evidence of Mrs Comfort Taiwo to the effect that she, respondent, was drunk when she returned back home on the night of the 28th May, 1960 and that she did utter the statements attributed to her by that old lady . I do not, however, propose to hold as against the respondent the statements made by her under the influence of alcohol or in the heat of passion as admissions of liability by her. I take the view that if she was cool and sober she would not have made any such statements.”

2. “There is, however, apart from the evidence of the respondent and the co-respondent no other evidence of their itinerary on the night of the 28th May, 1960 and immediately thereafter. They both said that they went to Chez Peter’s Hotel then to the Island Club and thereafter to the Rendezvous at Customs Street, Lagos. The sister-in-law of the respondent did not follow them to these latter places and although she was to meet them up at the Island Club she did not do so. I take the view that she was not expected to come back to them even if she had originally left the house with them. I do not think that she was ever in the company on that night. I am satisfied that the respondent and co respondent chose to go out together alone on that Saturday night and they did so. There is no clear evidence as to where they both went on that night. It seems to me unlikely that they had gone to the home of the co-respondent. For my part I do not accept the testimony of the respondent and co-respondent as to the places which they stated they had gone on that night. I think the story is a clever afterthought.

3. “Adultery is seldom capable of direct proof but in my view evidence must be forthcoming which will support an irresistible inference that adultery had been committed.”

4. “They both lied as to their itinerary that night. The embrace and kiss which occurred at Jebba Street that morning were hangovers from their escapades of the previous night.”

It is clear law that even if the learned Judge regarded as a confession the respondent’s statement as to her past adultery with the co-respondent and as to her future intention to have children for the co-respondent this would be evidence of confession of adultery by the respondent alone and would not be evidence against the co-respondent unless she made the statements in his presence and he acknowledged the truth of the statements by his conduct at the time the statements were made. But this is not the case because on both occasions in question the co-respondent was not present. Therefore the first extract from the judgment relates only to the charge of adultery against the respondent.

On the question of the weight to be attached to the confession, we disagree with the view of the learned Judge that because the respondent was drunk when she first admitted having committed adultery with the co-respondent that an admission made in such a condition although rightly admitted in evidence did not carry weight. Furthermore, even if the learned Judge thought that the first admission was made when the respondent was under the influence of alcohol what of her admission of adultery with the same man some four days later? Confessions of adultery are regarded with suspicion, in particular, in cases where the party making the confession desires a divorce. But it is our view that the respondent’s repetition of her confession of adultery some four days after her first admission of it as well as the events of the 28th May, 1960 as found by the learned Judge are sufficient corroboration to support a finding that the respondent was guilty of adultery.

We shall now consider the evidence before the Court below as against both the respondent and the co-respondent as well as the standard of proof required to support a finding of guilt in cases of adultery. The learned Judge stated in his judgment that, in order to prove adultery, familiarity as well as opportunity must be established, and found that there was clear evidence of familiarity. He stated, however, that the evidence in support of a finding of adultery must raise an irresistible inference that adultery had been committed and found that on the facts before him there was no evidence of opportunity.

The learned counsel for the co-respondent cited some authorities to us on the issue as to whether there was opportunity for the respondent and co-respondent to have committed adultery, and has asked us to hold that the learned Judge was right in deciding that there was none. He submitted further that in the circumstances of this case this court should not disturb the finding of fact made by the learned Judge to the effect that there was no opportunity for the respondent and the co-respondent to have committed adultery.

In respect of the second point made by the learned counsel for the co-respondent, we shall briefly refer to the following passage in Lord Thankerton’s speech in Watt (or Thomas) v. Thomas [1947] A. C. 484 [at p. 487] as to the test to adopt:

“(I). Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion;

(II). The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

(III). The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

As regards the question of whether or not adultery was committed, we are of the opinion that the learned Judge was in error in his application of the standard of proof required to the facts found by him to have been proved. It has frequently been held that, as with all other matrimonial offences, the standard of proof required in respect of adultery is proof beyond reasonable doubt. But it has also been held that it is not necessary to adduce direct evidence, because, as it is rare to obtain direct evidence, there would be no protection for the wronged spouse if the rule were otherwise. (See Preston Jones v. Preston-Jones [1951] A.C. 391 at p. 401; Woolf v. Woolf [1931] P. 134 at p. 144).

In Farnham v. Farnham (1925) 41 T.L.R. 543 at p. 544, Lord Merrivale, P., said.

‘“The inference of adultery arises when there is proof of the disposition of parties to commit adultery together, with the opportunity for committing it.”

Lord Buckmaster said in Ross v. Ellison (or Ross) [1930] A.C. 1, at p.7:-

”It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.”

Lord Atkin at page 21 of the same judgment said:- “But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct.”

From the foregoing it will be seen that the fact that adultery has taken place is an inference from all the surrounding circumstances of each case. And such inference may be drawn from confessions, admissions, undue familiarity, suspicious circumstances and improper behaviour. For instance, in Roast v. Roast [1938]  P.8, 17, it was decided that for the purpose of ascertaining the truth, the court was entitled to consider whether the party alleged to be guilty of adultery was the author of a certain filthy literature found in her bag.

Therefore, if there is evidence of undue familiarity, suspicious circumstances, and improper behaviour, the court is entitled, upon a consideration of each particular case, to find as a fair inference that such behaviour leads as a necessary conclusion to adultery. (See Loveden v. Loveden 2 Hagg. Cons. 1, 2; Allen v. Allen [1894] P. 248, 252). And where there is evidence of a guilty inclination or, in the words of the learned Judge in this case, clear evidence of familiarity, and this is coupled with evidence of opportunity, this is strong prima facie evidence of adultery.

As we have stated, the learned Judge found that there was clear evidence of familiarity but that there was not sufficient evidence of opportunity. With respect, we are unable to agree with him that a man who took a woman whom he knew to be another man’s wife away from home for about five hours during the hours of darkness, from about 9.30 p.m. till about 2.30 a.m., and whom he was found to be embracing and kissing near the door of the woman’s mother-in-law’s residence, had no opportunity of committing adultery with her.

And this in spite of the findings of the learned Judge that both the respondent and co-respondent lied as to their movements during the period of five hours when they were alone together, and that their embracing and kissing of each other was a hangover from what the two of them had been doing during the period they were alone together! For, as Denning, J., as he then was, said in Miller v. Minister of Pensions [1947] 2 All E.R. 373, in regard to proof beyond reasonable doubt:-

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

For the foregoing reasons we are of the opinion that the first, second and third grounds of appeal succeed. With regard to the fifth ground of appeal, we cannot find any authority in support of the view of the learned trial Judge that when both parties are at fault the petition must be dismissed. In the result we allow the appeal and set aside the decision of the court below and hereby grant the appellant a decree nisi. We decree that the marriage had and solemnized at the Marriage Registry in Lagos, Nigeria, on the 16th day of September, 1948 be dissolved by reason that on the 28th May, 1960 the respondent committed adultery with the co-respondent, Mr. Morris, unless sufficient cause be shown to the court below within three months from the making of this decree why it should not be made absolute. We hereby remit to the court below for determination the petitioner’s claim for custody of the children of the marriage.