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Anachuna Nwokafor and 5 others V Nwankwo Udegbe and 4 others (1963) LLJR-SC

Anachuna Nwokafor and 5 others V Nwankwo Udegbe and 4 others (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, Ag. C.J.E

This was a representative action, originally brought in the Udoka Native Court, in which the plaintiffs, for themselves and others of Umuanugwo Quarters of Ifite-Ukpo, sued the defendants, for themselves and others of Uruowelle Quarter of Umudioka, claiming a declaration of title to a piece of land called “Agbagolu” or “Mpiti”, and damages for trespass.

The land in question is bounded to the East by a motor road constructed by the plaintiffs and defendants, to the South by the Nkissi stream, and to the West by the Okpuaha stream. To the North there seems to be no visible boundary, and both parties claim to own the land stretching northward from the land in dispute to a line of trees described by the defendants as the “Douglas boundary”, to which I shall refer later.

The case for the plaintiffs is that the defendants own no land North of the Nkissi stream, and that the land East of the motor road and North of the Nkissi stream belongs to the people of Awka, which is another sub-family of lfite-Ukpo. The case for the defendants is that in 1908 there were proceedings between themselves and the people of Awka, and that a District Officer named Douglas awarded them title to a large area of land North of the Nkissi stream, of which the area now in dispute forms the South-Western corner, and which is bounded to the East, South and West by the Onyekwena, Nkissi and Okpuaha stream respectively and to the North by a line of boundary trees, which they call the “Douglas boundary”. Awka being a sub-family of the same community as the plaintiffs, the defendants submit that the award made by Douglas is binding on the plaintiffs.

The second plaintiff gave evidence in the High Court, and in addition to the surveyor the plaintiffs called one witness from Awka and one from Umunya, the community owning the land to the West of the Okpuaha stream. For the defence the first defendant gave evidence and in addition to the surveyor and witnesses as to the Douglas award four supposedly independent witnesses were called.

The trial judge found the witnesses on both sides unreliable, and regarded those called for the defence as even less reliable than those called for the plaintiffs. The original of the Douglas award had not been traced and the evidence with regard to it was entirely oral. The judge was of the opinion that the defendants had not called evidence of a sufficiently thorough search for the original to entitle them to give oral evidence of the award, but he nevertheless admitted and considered the oral evidence. The conclusion to which he came was that it was not established that the “Douglas boundary” was where the defendants said it was and that in any event the plaintiffs were not bound by it since they were not parties to the proceedings and it was not shown that they came within the class of persons who, though not parties to a suit, may nevertheless be bound by its result. I would agree that the award did not constitute res judicata against the plaintiffs, though I myself would rest this decision not so much on the grounds relied on by the trial judge as on the fact that it was not shown in what capacity Douglas was acting when he made the award. On the evidence he might either have been acting judicially, or as an arbitrator, or purely administratively and unless he was acting judicially or as a judicial arbitrator his award cannot create a formal estoppel.

On the other hand, the judge, who had visited the land, was satisfied that what the defendants asserted was the “Douglas boundary” did consist of a distinctive line of trees, and he did not regard the plaintiffs’ denial that it constituted a boundary at all as a satisfactory explanation; he only added that its mere existence did not establish it as the “Douglas boundary”.
As regards user and occupation of the land the judge described the plaintiffs’ story, that the defendants first crossed the Nkissi stream six years before the case was tried as “a little more probable” than the defendants’ claim to have been in occupation since 1908. He concluded by saying:-

“The line of trees, North of the land in dispute in Exhibit 2 (a) ” (the defendants’ plan) “may be a boundary with the Awka people, it is not shown that it forms a boundary with the plaintiffs.

There seems in the absence of any better evidence some grounds for saying that the Northern Boundary of the Defendants with the Plaintiffs is the Nkissi stream.

The Plaintiffs therefore are entitled to the declaration sought.”

With respect, it is not enough for a plaintiff asking for a declaration of title to set up a case which is “a little more probable” than the case put forward by the defence, or of which the highest that can be said is that “in the absence of better evidence” there are “some grounds” for accepting it. This is established by a long line of decisions of which the correctness has, so far as I know, never been seriously challenged. The trial judge gave convincing reasons for regarding the witnesses for the plaintiffs as unreliable, and on the written record I am not disposed to allow any greater credit to the case for the plaintiffs than he did.

I would therefore set aside the judgment in favour of the plaintiffs. It remains to consider what judgment it would be proper to enter in its place. The decision in Kodilinye v. Odu (1935) 2 W.A.C.A. 336, is authority for saying that the proper judgment when a plaintiff claiming a declaration of title fails to prove his case is one dismissing the claim, and the grounds for distinguishing that case which were held to exist in such cases as Nwakuche v. Azubuike (1955) 15 W.A.C.A. 46, and Bueze v. Nwakuche (1959) 4 ES.C. 262 are not present here.

I can see no ground which would justify this Court in making any order other than one dismissing the plaintiffs’ claim. “Wind dispersed and vain my words may be”, but I would add that the defendants’ title has not been directly in issue in this case, and that in dismissing the plaintiffs’ claim we shall in no sense be holding that the land belongs to the defendants, or that the defendants have established that their land extends to what they call the “Douglas boundary” at any part of that boundary.

I would allow the appeal, set aside the judgment of the Court below with the order for costs, and enter judgment dismissing the claim, with costs in the Court below assessed at 100 guineas and costs in this Court assessed at 55 guineas.


F.S.C.440/1961

Emmanuel v. The Queen (1963) LLJR-SC

Emmanuel v. The Queen (1963)

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BRETT, Ag. C.J.F. 

The appellant was convicted in the High Court of Eastern Nigeria on counts charging conspiracy to defraud, stealing by clerks or servants and false claims by officials.

The case for the prosecution against the appellant depended entirely on circumstantial evidence so far as the existence of a fraudulent intent was concerned, and the appellant’s counsel made a submission that there was no case to answer. When this was overruled the appellant elected to stand on his submission; he did not give evidence or make any unsworn statement, and his counsel did not address the court further.

His co-accused Stephen Nwosu, however, gave evidence on oath in which he maintained that he was merely a subordinate party to the offences charged and that the appellant was the real instigator of them and the chief participant. In convicting the appellant the judge took into consideration not only the evidence called by the prosecution but also that of Stephen Nwosu, as well as the appellant’s own omission to give evidence.

It is common ground that if the judge was right in holding that there was a case to answer, he was entitled to take the evidence of Stephen Nwosu into consideration as against the appellant, but the submission now made on behalf of the appellant is that the judge was wrong in holding that there was a case to answer, and that as the appellant refused to take any part in the subsequent proceedings he is entitled to have his conviction quashed.

That question will only arise in this case if we uphold the submission that the evidence for the prosecution disclosed no case which the appellant ought to have been called on to answer, and we now proceed to examine that submission.

The case against the appellant as disclosed by the evidence for the prosecution was summarised by the trial judge as follows:-
“The first accused, in July, 1959, was acting as Treasurer of the Oratta County Council. On July 31st, a pay sheet for road labourers, prepared by the second accused was presented to the first accused.

It was his duty to check it and see that it was correct. He signed a certificate to the effect that he had checked it and found it correct and paid out the sum of #3810’17.1d on a payment voucher. In fact the pay sheet was not correct at all, because the total of the various items on it only amounted to #3691’17.1d. There are six pages and the inflation is on the fifth. It can be seen that the total was originally for the correct figure. This was erased not very thoroughly and the higher figure substituted. The first accused therefore paid out ‘a3119 more than he should and the amount has disappeared it has been stolen from the council.”

In a sentence, the appellant paid out #3119 too much on the strength of a pay sheet which bore obvious alterations, which it was his duty to check, and which he had signed as correct. If he had overlooked the alteration through failing to carry out his duty of checking the pay sheet that would, no doubt, be proof of negligence and not of fraud and if the evidence was equally consistent with either the appellant was entitled to be acquitted.

But once the prosecution had proved what the duty of the appellant was and that he had ostensibly carried out that duty, it was not for the court to speculate on whether he had negligently failed to perform it, when there was no evidence on the point, and it was a matter specially within the appellant’s own knowledge whether he had in fact checked the pay sheet.

As the evidence stood at the close of the case for the prosecution we are of the opinion that the judge was right in holding that in the absence of anything tending to establish a neglect of duty rather than fraud there was a prima facie case for the appellant to answer. That being so, it is agreed that the appeal must fail, and it is dismissed.


SC.349/1962

Alhaji Shittu Bamidele and Anor v. Aderinola Adeyemi and Ors (1963) LLJR-SC

Alhaji Shittu Bamidele and Anor v. Aderinola Adeyemi and Ors (1963)

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BAIRAMIAN. EJ.

In this appeal the defendants in the Ibadan Suit No. 1/288/61 complain of the judgment given on the 30th March, 1962, awarding damages to the plaintiffs, of whom two are described as wives and the others as children of Isiaka Adeyemi, on the ground that through the negligent driving of the 2nd defendant, the driver in the service of the 1st defendant, the owner, the lorry swerved from the road and collided with a tree, whereby Adeyemi was killed.

The plaintiffs’ allegations in their Statement of Claim were denied, save that the driver admitted that Adeyemi was a passenger in the lorry.
There were various objections to the judgment on appeal; that the first two plaintiffs who claimed to be wives did not prove they were -with that degree of proof which is laid down in Lawal and ors. v. Youman and ors.[1961] All N.R.,245, at 251, in the judgment of the Federal Supreme Court; see also the report of the judgment at first instance, in (1959) W.N.T,.R., 155; that a sketch of the sense of the accident was admitted though not produced by the police constable who had made it; that the post mortem report was put in without any evidence to verify it; and some other objections besides; but here, in view of that will be proposed, one point only will be discussed.
The driver gave evidence in his defence, in which the said that a cyclist ran across the road, and not wishing to hit the cyclist, he swerved and collided with the tree. He was cross-examined on a statement the had made to the police; he denied making any statement and disowned the signature on the statement shown to him; it was read out to him, and the said it was not his. That explanation had not been pleaded, but leave was given, in the course of counsel’s closing speech, to amend the defence and plead it. This passage deals with the point in the judgment:
“He further testified that he was at the moment of impact, driving in third gear, and that the cyclist was 20 ft. away when he first saw him.
If I accept the story of the 2nd Defendant as true, he could be exonerated from all blame, but after hearing all the evidence and seeing the 2nd defendant testify, I am unable to accept his explanation as true. Furthermore, I fail to understand how he could be driving a 5 ton Lorry in third gear and was unable to avoid a Cyclist that he first saw about 20 ft. away without this mishap. Furthermore this defence was not pleaded in any shape or form whatever, in the Statement of Defence. His statement to the Police, made soon after he was well enough to make one, did not mention this explanation. If this explanation was true, it would have been the first thing he would have mentioned and it might have been possible for some sort of check to have been made by investigation.”
Now the trial judge used that statement, which was not proved to be a statement made by the 2nd defendant and which he denied as a means of discrediting his evidence on a point which would have exonerated him. It has been argued for the plaintiffs that the trial judge would have disbelieved him anyway, even without the test of the statement, for other reasons for disbelieving him were also given in the judgment. We cannot say. We are faced with a flaw in the consideration of the vital issue of negligence, and the only proper course is to have a fresh trial.
The parties should be at liberty to put in fresh pleadings and adduce whatever evidence may be needed on the issues raised. One hopes that things will be done better in that regard. One also hopes that the new judgement will give some light on the method used for assessing damages, if the plaintiffs succeed: the judgment under appeal gives no clue, and both sides found it hard to say anything useful on appeal.
I would allow the appeal and propose::-

That the appeal be allowed and the judgment or 30th March, 1962, in Suit 1/288/1961 of the High Court of the Western Region, be set aside, and that it is hereby ordered that there shall be a new trial before another judge, with liberty to have fresh pleadings, with forty guineas as costs of appeal allowed to the defendants, and forty guineas as costs in the court below.


F.S.C.315/1962

Koussay Ussuf Haider v. Berini (1963) LLJR-SC

Koussay Ussuf Haider v. Berini (1963)

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BAIRAMIAN, E.J.

The plaintiff (now appellant) was engaged at Beirut, Lebanon, to come out to Lagos as an employee of the Bank on certain terms, which are shown in a letter dated 24th October, 1959. For present purposes it is enough to refer to clause 3, which fixes his salary at #1,200 a year payable monthly; to clause 4, which fixes his period of employment at three years; and to clause 8,which provides that:

“In case the present contract is revoked by us before the expiration of the three years period agreed upon only the clause of this contract would be applied and therefore you would not be entitled if the revocation is without any reason or legal cause, to claim anything besides your salary mentioned in the third paragraph of this contract and covering only Its remaining period.

And if you come to revoke this contract before its expiry date you would be required to pay a pre estimated indemnity of #3,600 (three thousand six hundred pounds) which is considered as penalty and could not be amended.”

The Bank dismissed the plaintiff on the 1st June, 1960, and he sued for damages for wrongful dismissal, claiming (among other items, which are not in question now):
(a)#2,900 as salary for the unexpired period;
(b) #300 being three months pay in lieu of notice; (c) general damages for wrongful dismissal #1,200.

The Bank denied that the dismissal was wrongful, and denied liability. Onyeama, J. decided that the dismissal was wrongful, and allowed three months notice as reasonable; he also gave judgment for payment of the salary for May, 1960, and of the price of return air tickets to Beirut; these two items are not in question.

The plaintiffs complaint is that #300 for a three months notice is erroneous, in view of clause 8, which entitles him to twenty nine months salary. It is argued that the contract is exhaustive, and pointed out that clause 8 providcs also for indemnity to the Bank in the event of the plaintiff revoking the contract. As for the claim of three months salary in lieu of notice, that was based on clause 7 of the contract, which provides that:
“On the expiration of the date mentioned in paragraph 4, this contract would be renewable every year unless it is revoked by any of us with at least three months notice.”

The judge erred, in the submission for the plaintiff, in taking that as the proper length of notice.
Two cases were cited in support, namely, McLelland v. Northern Ireland General Health Services Board [1957] 2 All E.R. 129; and Garabedian v. Jamakani [1961] All N.L.R. 177. In the latter Savage, J. awarded the plaintiff the salary for the remainder of the period of employment as damages for wrongful dismissal. The plaintiff had come out from the Lebanon for one year. It was presumably the right award in that case. In the former case, there was considerable disagreement on the meaning of a clause in the conditions of employment. Mr. Impey was relying on the majority view in the House of Lords, that the clause was exhaustive.

The parties to a contract sometimes agree upon a pre estimate of the damages in the event of breach. Clause 8 does not provide such a pre estimate. That is clear in the case of breach by the plaintiff, as the provision is that he shall pay #3,60 his salary for three years as a “pre estimated indemnity which is considered as penalty and could not be amended.”

Equally the provision in the case of breach by the Bank is not a pre estimate of damages in the genuine sense. The flaw in the argument for the plaintiff is that it treats the contract, which has been broken and does not exist, as subsisting until the end of the three-year period and entitling the plaintiff to salary for the unexpired term of twenty-nine months. That is the mistake, as pointed out by Tindal C.J. at the beginning of his judgment in French v. Brookes and others, 6 IBing. 354; 130 Eng. Rep. 1316 at 1319; his Lordship said

“My brother Wilde’s motion stands on the construction of the agreement: he argues that the contract between the parties not having been determined in the mode pointed out be the agreement, it must be considercd as subsisting for the whole time originally contemplated. But this action, like others of the same sort, is brought because the contract has been violated; and the case has been correctly dealt with if the jury have given damages for the breach.”
(That case was not cited in the argument.)

For the Bank the argument is that the damages should not be such as to enable the plaintiff to sit in idleness for twenty-nine months, but to compensate him for the time reasonable needed to find employment, on the accepted principle that the plaintiff has a duty to minimise the damages: Chitty on Contracts, 21st ed., Vol. I, at p. 434; and that in the present case account must also be taken of the fact that the Bank of cered the plaintiff a fresh appointment in the Lebanon. Brace v. Calder, [1895J 2 Q.B. 253 was cited in support.

In Brace v. Callder the continuing partners of the firm offered the servant a new service on the old terms, but he refused it; the court decided that he was entitled to nominal damages. In the present case the defendant Bank wrote to the plaintiff on 28th May, 1960, telling him to report at Beirut on the 31st, to the Managing Director of Berini Bank Limited, “for further instructions as to your new duties under your contract”.

But the defendant Bank had written to the Principal Immigration Officer on 23rd May, informing him that the plaintiff “is no longer in our employment with effect from 23rd May, 1960”. Comment is superfluous; that letter cannot help the defendant Bank on the assessment of the damages.

For the Bank it has been submitted that three months salary was enough, as awarded by the trial judge; alternatively, that the most he could have was the salary of the remaining months of the first year ending 31st October, 1960, viz. salary for five months: the Bank’s argument on the latter submission is that that is what clause 8 contemplates when read with clause 3, which fixes the salary at #1,200 a year payable monthly.

In my view that interpretation of clause 8 is not possible; and in any event the Bank did not offer the plaintiff any money as compensation for dismissal. He found himself obliged to sue which he did immediately; and he had to wait here until his case was decided.

One has to bear in mind that he was an alien in Nigeria, brought here as an employee of the Bank by leave of the Immigration Authorities, and that factor was overlooked by the trial judge when assessing the damages.

It may be reasonable in the normal case to award damages on the basis of three months notice in the case of Nigerians dismissed by a bank: they can seek other employment, and they should; but an alien like the plaintiff is in a different position.

There is no evidence on the possibility of his finding other employment and on the restrictions in that regard which apply to him as an alien; he was not cross-examined, and the Bank offered no evidence at all. The Bank by its unreasonable conduct having obliged the plaintiff to stay on for his case, cannot also complain that he did not minimise the damages.

It is worth noting that the argument for the Bank on minimising damages is confined to the plaintiff’s refusal to go to Beirut immediately.

In the light of the above considerations I am of opinion that the damages should include salary to the end of January, 1961-the judgement was given on the 27th January-plus salary for one more month thereafter to allow the plaintiff time to arrange for appeal against the judgement and return to Beirut and settle down there, plus salary for another three months in which to seek suitable employment-which means twelve months in all.

Having regard to the circumstances of the case, I think that a year’s salary should have been awarded. I would allow the appeal and order:-

That the judgment of January 27, 1961, in the Lagos High Court Suit No. 180 of 1960, be and is hereby varied in the plaintiff’s favour by increasing the six hundred and eight pounds to fifteen hundred and eight pounds (#1,508) as the amount payable by the defendants, with sixty guineas as costs of appeal to the plaintiff.


LD/180/60

Andrew Bassey Vs Ekpo Archibong Young (1963) LLJR-SC

Andrew Bassey Vs Ekpo Archibong Young (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, F.J.

The appellant was the successful candidate at the election for the Eastern House of Assembly held on the 16th November, 1961, in the Calabar West constituency. The respondent was the only other candidate, and the appellant was returned as elected by a majority of 183 votes.

The total number of registered voters seems to have been 34,662, and the returns showed 14,741 valid votes as having been given, a proportion of roughly 3 in 7. The respondent brought an election petition challenging the return, and Idigbe, J., gave judgment on the petition, declaring the election of the appellant invalid. The present appeal is brought against that judgment.

The petition alleged various irregularities which were said to have affected the result of the election, and concluded with a general allegation that the appellant had been guilty of corrupt practices and that he had not been elected by a majority of lawful votes.

No further particulars of these general allegations were asked for, and Mr. Obi Okoye, for the respondent to this appeal, submits that in view of regulation 32 of the House of Assembly (Disputed Seats) Regulations, 1961, he is entitled to rely on the unlawfulness of any votes of which evidence was given, where the evidence warrants it, even though the petition did not specify those votes as not being lawful ones.

For reasons which will appear, I do not think it is necessary, for the purposes of this appeal, to determine this question and I express no opinion on it. As regards corrupt practices, the judge expressly found that none had been proved, and this is not disputed.
It will also be convenient at this stage to deal with the general burden of proof in an election petition. Mr.. Obi Okoye cited to us a passage from the judgment of Stratified, J., in re Kensington North Parliamentary Election [1960] 2 All E.R. 150, in which he said:-

“The question of the burden of proof does not, on the strict wording of S. 16, really arise. If it did arise, it seems that, under the wording of the corresponding section of the Ballot Act, 1872, the burden rested on the respondent: see Islington, West Division, Case, Medhurst v. Lough and Gasquet. I think that with the changed wording under S. 16 (3) of the Act of 1949 it is for the court to make up its mind on the evidence as a whole whether there was a substantial compliance with the law as to elections or whether the act or omission affected the result.”

I have two comments to make on that. The first is that I think the con of the passage makes it clear that Stratified, J., was not considering the burden of proof on the question, whether irregularities had taken place, but on the question, whether, if they had taken place, they affected the result of the election.

The second is that the Kensington North case was one of a number of cases cited to this court in Akinfosile v. Ijose (1960) 1 F.S.C. 192, where the court held that a petitioner who alleges in his petition a particular non-compliance and avers in his prayer that the non compliance was substantial must so satisfy the court. If there should be any inconsistency between the two decisions, it is the decision of this court that binds us, and it would appear to me that we are bound by the authority of Akinfosile v. Ijose to hold that the petitioner must show both that irregularities took place and that they might have affected the result of the election. I shall consider the burden of proof on a particular issue later.

To conclude the points of law which were discussed before us, Mr.. Obi Okoye relies on the judgment of Grove, J., in The Borough of Hackney (1874) 31 L.T. Rep. 69, as authority for saying that an irregularity which affects the size of the majority by which the successful candidate is elected is always sufficient ground for annulling the election.

On the view which I take of the facts the question does not arise in the present appeal, and I will only say that if Grove, J., meant to lay down a general rule the rule was not followed in the Kensington North case, which was approved on the point by this court in Sorunke v. Odebunmi (1960) 5 F.S.C. 175.

Voting in the constituency was conducted at 85 polling stations in all, and the petition alleged irregularities at 11 of them. In a long and careful judgment, the trial judge found that irregularities had been proved at 7 stations, but he did not regard the irregularities at stations 1, 2 and 3 as proved at stations 3A, 6, 22 and 23. As regards stations 3A and 6, the petition alleged as follows:-

“Contrary to advertised places of polling, station 6 was removed to another site in the morning of 16th November, without prior notice. Station 3A had been cancelled with instruction that voters there would vote in station 10. But the voters who were scheduled to vote in station 3A were turned out at station 10. In consequence many voters for stations 6 and 3A did not cast their votes. These were Petitioner’s strong-hold.”

The evidence in support of the petition was that station 3A was to have been opened at the U.P.E. School, Isong Inyang, and while there was no direct evidence on the point the court was asked to infer that no station 3A was opened there or elsewhere, although forms were completed showing 96 votes cast for the appellant and 8 for the respondent at station 3A.

The judge regarded it as doubtful on the whole of the evidence whether a station was ever established at the U.P.E. School, and whether the votes shown on the return were genuine votes. Having regard to the burden of proof, I do not consider that this finding warranted the judge in basing the declaration in part on his findings as to station 3A, and in my opinion Mr.. Obi Okoye, who appeared for the respondent in the appeal, was right in abandoning his attempt to support the judgment so far as it rested on this finding.

Two polling stations, nos. 5 and 6, were to have been established at the U.P .E. School, Ukim Ita, but a Mr.. E. E. Cole, who was the principal candidate’s agent for the petitioner, said that he visited the place and found only station 5 opened there. He added that later he found that station 6 was established in a village called Ikot Inyang, two miles away.

Here again returns were made showing that 127 votes were cast at station 6, out of a total of 213 registered voters, and describe the station as Ukim Ita II. For the appellant Chief Williams invites us to say that the number of votes cast tends to discredit Mr.. Cole’s story; Mr.. Obi Okoye, on the other hand, is prepared to go to the length of submitting that the returns are fraudulent, and that no votes at all were cast at station 6, wherever located. It is certainly worthy of comment that the person who signed the return Exhibit E.17 as agent for the petitioner does not bear the name of either of the polling agents nominated by her for station 6, but the trial judge was content to accept Mr.. Cole’s evidence and hold that station 6 was established, though in a place other than that advertised, and I should not be prepared on the evidence to say that he was wrong in declining to hold that any greater irregularity than that took place.

Accepting Mr. Cole’s evidence as he did, the judge held not only that certain voters had been deprived of the opportunity of voting, but that the votes cast at a station established in the wrong place were not lawful votes. I do not consider that the appellant has shown that the judge was mistaken in accepting Mr. Cole’s evidence, and I agree that the change of the place of station 6 may have deprived a certain number of voters of the opportunity of voting, though the proportion of votes cast to registered voters in that station seems to be above the average for the constituency.

I should wish to hear further argument before accepting the view that the votes actually cast are not to be regarded as lawful votes, but it is unnecessary to decide this question, since the majority of 61 obtained by the appellant at station 6 was less than his majority in the constituency as a whole, and might be deducted without affecting the final result. The appeal must turn, in my opinion, on the correctness of the judge’s findings as to stations 22 and 23.

These two stations were both established at the Town School, Adiabo, and the petition alleged that polling at them commenced at 12.15 noon and closed at 4 p.m., instead of the advertised times of 8.30 a.m. and 4.30 p.m., and that in consequence many voters were unable to cast their votes. In fact from a combined electoral roll of 898,238 votes were cast, which is less than 2 in 7, and considerably below the average for the whole constituency, and if the allegation that the stations were not open for the required period is true the irregularity is certainly one which might have affected the result of the election.

The evidence showed that in this part of the constituency the polling boxes and polling tickets were to be distributed to the various polling stations on the day of the election by a Mr.. L. E. Nya, who was to be assisted by a Mr.. Inyang. Mr. Nya was called as a witness by the appellant. Each of these two persons was responsible for the distribution to various stations, and stations 22 and 23 were allocated to Mr. Nya, but on the afternoon before election day Mr. Nya discovered that through some error only two out of the four boxes for stations 22 and 23 had been sent to him, and that the other two boxes, and the polling tickets, had been sent to Mr. Inyang. He saw Mr. Inyang later that evening, and it is to be presumed that he told him of this. At all events, Mr. Nya set off from Creek Town to distribute his materials at 5.15 a.m., and arrived at Adiabo at 8.10 a.m. He delivered the materials he had, but polling could not start until Mr. Inyang arrived with the other two boxes and the tickets, and the question is when Mr. Inyang did arrive there.

According to Effiong Essien Akpa, a customary court messenger who was employed about the station to search prospective voters, Mr. Inyang did not arrive until about 12.15 p.m. Mr. Cole said he visited the place at about 11a.m., and found that polling had not yet started. Lance-Corporal Raphael Okpara of the Nigeria Police said that he accompanied Mr. Inyang on his round and that after starting from Akpap Okoyong at about 8 a.m. they arrived at Adiabo at about noon, when polling had not started. Mr. Nya arrived there a second time at about 12.30 p.m. with Mr. Cole, who had complained to him about the late starting, and what he described is consistent with polling having only just started.

No evidence was called to contradict this and in my view the only possible conclusion from the evidence called was that polling did not start at stations 22 and 23 until about noon. Without necessarily accepting the estimates given by various witnesses of the numbers of voters present at different times, I also think it was sufficiently proved that a substantial number of voters had grown tired of waiting and gone away before the poll opened. Of the two witnesses as to when the poll closed, the only one whom the judge thought worthy of credit was the court messenger, Akpa, who said that at 4 p.m. “one Mr. Nya asked the presiding officers to close polling”.

The only Mr. Nya mentioned in the evidence is Mr. L. E. Nya, and he was not asked about this by counsel for either party. Mr. Ekpe, the polling agent for the petitioner, whom the judge thought unreliable, agreed as to the time of closing but said that he did not see Mr. L. E. Nya at Adiabo at the time the stations were closed. There is a certain improbability about the details of the story, particularly as Akpa says that when the stations were closed there were about 50 people actually inside the stations waiting to vote, and it becomes important to decide where the burden of proof lies, and what it is that has to be proved.

Regulation 34 of the Elections (House of Assembly) Regulations, 1961, reads as follows:-

“The hours fixed for the taking of the poll shall normally be from 8.30 a.m.  to 4.30 p.m. but shall be a period of not less than 8 hours and subject to Regulation 56 shall be a continuous period; and varying periods may with the approval of the Electoral Commission be prescribed in respect of different constituencies. ”

The advertised hours at all polling stations on the day in question were 8.30 a.m. to 4.30 p.m., but Mr. Nya said that he had instructed the presiding officers of the stations which opened late that they were to remain open for eight hours and Chief Williams submits that there is a presumption of regularity, which the petitioner failed to rebut, the more so as it would be an offence punishable under regulation 78 for an officer to be guilty of an act or omission in breach of his official duty without reasonable cause. The expression “presumption of regularity” is, if I may say so, one which lends itself to imprecise usage, and I see no warrant in the Evidence Act or elsewhere for any presumption that stations 22 and 23 remained open until 8p.m., an hour or more after dark. In my opinion, once the petitioner had shown that polling started nearly four hours late the burden was on the appellant to show that the poll remained open for eight hours if he wished the court so to find, and it is not pretended that he made any attempt to discharge this burden. But that would not have concluded the matter.

Even if the appellant had proved that the stations were open for eight hours, from noon to 8 p.m., the court would have had to consider the circumstances prevailing in that polling area and decide whether, after such a departure from the advertised hours of polling, made without previous notice, it could be said that the election was conducted substantially in accordance with the regulations, or that the non-compliance did not affect the result of the election. It is useless to keep the poll open for eight hours if the voters do not know, and have no means of finding out, what the hours during which it will be open are to be.

While it may be a question of some nicety, how much Persistence a voter is expected to show, people wishing to exercise their constitutional right of voting cannot reasonably be asked to neglect their other affairs indefinitely while waiting for the poll to open, and I do not consider that a voter who had lost patience by 11.30 a.m. and gone away, with no information as to when polling was likely to start, could be expected to make another visit to the polling station later in the day in case the poll should be open. Chief Williams, wisely perhaps, did not touch on this aspect of the question, which would seem to me to be fatal to the appeal.

On these grounds I would uphold the finding that a substantial irregularity was proved in relation to stations 22 and 23, and I would dismiss the appeal with costs assessed 40 guineas.


Other Citation: (1963) LCN/1078(SC)

Adam Oputa of Ndoni v. Okwei Ezeani (1963) LLJR-SC

Adam Oputa (also known as Puta Okeya) of Ndoni v. Okwei Ezeani (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, EJ.

The action in which this appeal is brought, and which was tried as number W n3/1957 in the Warri Judicial Division of the High Court of the Western Region, turns on the title to a piece of agricultural land situate at Ndoni in the Aboh Division of Delta Province.

The case for the respondent, who was the plaintiff in the High Court, is that the land has always belonged to her family; that when the appellant’s father, Obi Oputa, was made a chief by the government he obtained from her family a piece of land at Ndoni on which to build a residence, but continued to make use of his own farm land, some five miles away; and that later he, and the appellant after him trespassed on the agricultural land in question.

The appellant claims that the land in question has always belonged to his family, and admits using it and putting tenants on it. On the evidence called before him the Judge found in favour of the respondent, and it has not been seriously argued that he was wrong, except in refusing to give effect to a plea of estoppel put forward by the appellant.

The facts bearing on this plea are as follows. In February, 1956, the respondent instituted proceedings in the High Court against Obi Oputa, claiming damages for trespass to the land now in question. Obi Oputa died some time in 1956 and the action lapsed. Also in 1956 the appellant, who claims to be the oldest member of his family, sued four persons in the Ndoni Clan Native Court for trespassing on the land in dispute, by cutting palm fruits. They claimed to do so as “tenants” of the respondent, and on the 10th December, 1956, judgment was given against them.

The respondent, on hearing of the action, had told the clerk of the Native Court that she had instituted proceedings in the High Court in respect of the land, and on the 5th January, 1957, the Assistant Divisional Adviser purported to make an order under section 28 (1) (c) of the Native Courts Ordinance, transferring the appellant action to the High Court for hearing and determination. The present proceedings were instituted on the 4th May, 1957, and on the 14th October, 1958, an order was made at the instance of the respondent consolidating the present proceedings with those in the transferred action for trial. The order of transfer was later held to be invalid, and in these circumstances the judgment of the Native Court remains effective. The question is whether it binds the respondent.

In the Statement of Defence, as amended, the appellant referred to the judgment of the Native Court and said that he would “rely on it at the hearing”, which is an ambiguous expression, but the actual purpose for which his counsel referred to the judgment at the hearing was to set up a plea of estoppel by conduct. He did not cite the decision of the Privy Council in Ofori Atta v. Bonsra [1958] A.C. 95, but he was invoking the principle accepted in that decision, that a person who has knowingly stood by while a subordinate fought the question of title in the same interest is estopped from litigating the matter afresh. The Judge held against him on the facts of the case, and I have no hesitation in agreeing with the Judge.
The grounds of appeal originally file do not allege an estoppel by conduct, but go further and allege that the judgement of the Native Court constituted res Judicata since the former action “related to the same subject matter and the same parties”. During, the hearing of the appeal Mr. Alele obtained leave to file an additional ground of appeal which alleges estoppel by conduct, but he did so reluctantly, and at the close of his argument he apparently abandoned this ground of appeal and reverted to his former plea of res Judicata.

As I have already said, the plea of estoppel in the Defence was worded in an ambiguous way, and at best it is in the discretion of this Court whether to allow the appellant to raise a point which was pleaded but deliberately omitted from argument in the Court below: Hickman v. Kent or Romney Marsh Sheepbreeders Associaton (1920) 3 T.L.R. 163. If the respondent had objected to the points being raised we should have had to consider whether there was any reason why it should be allowed to be raised for the first time here. However, since no objection was made and the point was in fact argued, it may be well to deal with it.
In support of the plea Mr Alele relied on two cases-Onisango v. Akinkunmi, W.R.N.L.R., 1955-6,39, at p. 40; and Olabiyi v. Abiona, ibid., 126.
From the judgment in the first case he quoted the following passage:-
“The term ‘parties’ includes not only those named on the record, defendants becoming parties after service of the writ, but also those who had an opportunity to attend the proceedings (Wakefield v. Cooke [1904] A.C. 36,38; Askew v. Woodhead, 21 W.R., 573).”

That is a quotation from Phipson, 9th edition, p. 430; and it would seem that the learned Judge had not read the two English cases. The first of them related to a street, and the question was whether it had to be repaired by the inhabitants at large, or by those who dwelt along the street. It had been decided in an earlier case, under certain sections of the relevant Act, that the street had to be repaired by the inhabitants at large; and the decision in Wakefield v. Cooke was that the judgment in the earlier case, which decided the status of the street, was essentially a judgment in rem and that the question could not be raised again under the same sections of the Act.

It is true that there are passages in the speeches of Lord Halsbury, L.c., and Lord Davey, to the effect that as the persons wishing to argue that the street should not be repaired by the inhabitants at large had been given notice in the previous proceedings to come in, the earlier judgment was virtually a judgment interparties.. .and that seems to be what the learned author of Phipson had in mind, but in any event, there is no resemblance between that case and the one in hand. In Askew v. Woodhead the facts were these.

There was a decree in a suit against trustees in regard to their administration. Later, someone who had notice of the decree brought another suit against them, again In regard to their administration. Later still, the plaintiff in the second suit obtained leave to attend the proceedings under the decree in the first suit. The defendants applied that the second suit be stayed; and it was stayed until the proceedings in the first suit should be concluded. That case also differs from the one in hand.

It is clear that those English cases do not warrant the general proposition stated in Onisango v. Akinkunmi, which cannot be treated as an authority for a rule of general application on res Judicata.
As regards Olabiyi 2,. Abiona, the following passage in the judgement, at p. 127 of the report, shows that this case is clearly distinguishable on the facts:-
“It must be borne in mind that in Suit No. 60/38 it is not a case of the ordinary man in the street if I may so call him, suing on behalf of a people or community, it is a case of an aba, a native ruler, who by decided cases has been held to be the trustee (using that term loosely) of the land for his people, suing for and on behalf of the people. I therefore hold that the present plaintiffs were privies to the previous Suit No. 60/38.”

Neither of the cases relied upon by Mr. Alele supports the plea of res Judicata in the case in hand.

As regards estoppel by conduct, I have already said that I agree with the trial Judge. The respondent was the first to institute proceedings raising the issue as to the title to the land, and it seems a reasonable inference that the abortive attempt to transfer the case was made in consequence of what she told the clerk of the Native Court. I do not see how she could fairly be said to have stood by while others fought the (question of title, and I would dismiss the appeal with costs assessed at 18 guineas.


F.S.C.300/1961

Mbam Iziogo Vs The Queen (1963) LLJR-SC

Mbam Iziogo Vs The Queen (1963) LLJR-SC

LawGlobal-Hub Lead Judgment Report

TAYLOR, EJ.

The deceased made a report to the Police about the theft of his goat, and as a result he went to the house of the appellant in the company of two Police Constables where they saw a goat tethered by the barn of the accused. The accused at first denied, when asked, that he was the owner of the goat but subsequently admitted ownership, saying that he had purchased it at the market. The accused was then invited by the Constables to the house of a Councillor, whereupon he uttered these words to the deceased:

“You are the person who called the Police to arrest me. We are going to settle it face to face. It is good”.
Accused then rushed into his house; came out with a dagger, and stabbed the deceased in the right arm. He then seized the deceased’s matchet and struck the deceased in the neck and other parts of the body. The evidence of Prosecution Witness I, the landlord of the accused, reads thus at this point:-
“I did not hear accused say anything to the deceased before he stabbed. After I ran away I came back shortly afterwards to the front of accused’s house and saw the deceased lying on the road, he was already dead”.
The evidence of the 4th Prosecution Witness, one of the Police Constables who accompanied the deceased to the house of the accused, was also definite on the point that the deceased was dead when they conveyed his corpse to the Police Post and that before the attack there was no struggle between the deceased and the accused. Further there is the evidence of Prosecution Witness 5, the brother of the deceased, who identified the body to the doctor, to the effect that the accused rode past him on his cycle saying that he (the accused) had killed his (the witness’s) brother.

Mr Obi Okoye, Learned Counsel for the accused, did not in arguing the appeal challenge the findings of the Learned Trial Judge but sought to challenge the verdict on the point that the depositions of the Medical expert were wrongly received in evidence as the conditions laid down for its reception had not been satisfied; that in the absence of the medical evidence there was no evidence as to the cause of death of the deceased.

Section 34( 1) of the Evidence Act Cap. 62 states that:-
“Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way of the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided:-
(a) That the proceeding was between the same parties or their representatives in interest;

(b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) That the Questions in issue were substantially the same in the first as in the second proceeding.”
Subsection 3 is also relevant for the purposes of this judgment and arguments raised by Learned Counsel. It reads thus::-
“In the case of a person employed in the public service who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is presented to the court, either a Gazette, or a telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.”
Mr Obi Okoye in addition to the submission contained in an earlier part of this Judgment as having been made by him also submitted that:-

(i) There was nothing in the evidence to show that the proceedings in which the depositions of the medical expert were taken was the same as the preliminary Investigations into the offence for which the accused stood charged.
(ii) That further Exhibit ‘C’ the letter of notification of the absence of the medical expert from Nigeria did not comply with S. 34(3) of the Evidence Ordinance.

The evidence leading to the tendering of the Depositions of the medical expert reads thus:-

“2nd P.W. Dada Joseph sworn………………………………………………… 1st Class Clerk, Ministry of Health, Abakaliki. I know Dr Nebuwa Nwozo Acquaye. She was M.O. Abakaliki up till September, 1962. To the best of my knowledge she is now in the United Kingdom on Government Course of Study. From communication we have received from her she is expected by next year.

XXD: Eze: None.

Crown Counsel applies for deposition of Dr Acquaye in the case of the death of Ofoke Oyiba to be tendered.”
The Registrar of the Court was then called and an endeavour was made to tender the depositions but the Trial Judge upheld the objection that sufficient foundation had not then been laid for the admission of the depositions. After other witnesses had been called, Micheal Chuka Ejiofor, Prosecution Witness 9 gave evidence and tendered exhibit ‘C’ without objection being raised. The Registrar of the Court was recalled and the depositions of Dr Acquaye were tendered, also without objection. Exhibit ‘C’ reads as follows:-
“The Registrar, High Court Session, Abakaliki.
Criminal Charge at Abakaliki E/64c/62: The Queen v. Mbam Iziogo
I am directed to inform you that Dr (Mrs.) N. N. Acquaye, Medical Officer, left Nigeria for the United Kingdom on an in-service training Course by the M.V. “Aureol” which sailed from Lagos (Apapa) on 18th September, 1962.

(Sgd.) S. E. Onwu,
Permanent Secretary,
Ministry of Health.
Mr Obi Okoye’s main objection is that Exhibit ‘C’ was signed by the Permanent Secretary to the Ministry of Health and that therefore the letter was not one purporting to emanate from the Head of the Department. The argument is wholly met by S.42 of the Constitution of Eastern Nigeria which provides that:-

“Where any Minister of the Government of the Region has been charged with responsibility for any department of government, he shall exercise general direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a permanent secretary, whose office shall be an office in the public service of the Region”
It seems to us that a letter purporting to come from the Permanent Secretary of a Ministry in the usual course of business is a letter to which the Minister has subscribed and which emanates from him.
As to the other point raised, when one reads the evidence of the Registrar of the Sessions before his recall together with his evidence when recalled, as well as Exhibit ‘D’, the deposition of the Medical expert made it abundantly clear that it was the deposition taken

(1) At the Preliminary Investigation into the murder of Ofoke Onyiba.
(2) That such Preliminary Investigation was held by Magistrate B. C. Nwosu on 29th June, 1962.
(3) That the body was identified by Nwibodo Awoka described in Exhibit ‘D’ as the 2nd Prosecution Witness and who at the hearing of the case on appeal was also the 2nd Prosecution Witness.

In passing it should be pointed out that the effect and meaning of this section of the Evidence Act was fully dealt with in the Queen versus Ijoma ES.C. 309/1961, and it is therefore unnecessary for us to say any more than is contained in this Judgment on the point. For these reasons we dismissed the appeal on the 11th February, 1963.


Other Citation: (1963) LCN/1077(SC)

Ali Abadallabe v. Bornu Native Authority (1963) LLJR-SC

Ali Abadallabe v. Bornu Native Authority (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.l.

The appellant as convicted of culpable homicide punishable with death and sentenced to death by the Shehu of Bornu’ s Court on the 4th June, 1962; his appeal to the High Court of the Northern Region was dismissed on the 16th November, 1962; and his further appeal to our Court was dismissed at the hearing at Kaduna on the 6th March, 1963, for reasons which will now be given.

It was about midnight on the 15th to 16th April, 1962, at Ngalori, in the Marte District, that he killed one Lime, a woman, in her house That the appellant admitted but he denied the version given by Zara, the daughter-in-law of the deceased. Zara’ s version was that she was waked up by the deceased’s cry for help; she ran out of the room and found them wrestling; her mother-in-law is holding the appellant and she fell down at once; when she, Zara, got hold of him, he stabbed her also, and she fell down, too, and could no longer hold him. Zara survived; Lime died immediately: she had been stabbed on the right side of her chest and on the inside of her right arm. The appellant asked Zara whether when he entered the room she was asleep or awake; she said she was asleep; he put no more questions.

His version was that as he was leaving the village of the deceased, about midnight, he met Zara’ s elder sister, who told him that Zara wanted to see him; so he went and called Zara, who answered; he entered, she asked him to sit on the bed, but he refused; he told her if she had any message, she might let him know; she again asked him to sit on the mat, but he refused and told her that if she had no message to give him, he could go, and then began to go out; he felt a man holding him: it was the deceased Lime; he thinking that they plotted to kill him, tried to free himself by drawing out his knife backwards, and it got at the deceased, who released him, and he ran out; later he was held by another person at a distance, and he again stabbed backwards, but he did not see who it was that he stabbed; and so he got away and fled, but in the afternoon he came back and gave himself up.

He admitted that he knew he was going to Danna’s house, and that Zara was Danna’s wife; that he found the door shut, and that all the people of the house were asleep. His explanation of why he stabbed was that he thought they had made a plot against him.

The elder sister, Anga, gave evidence. She denied telling the appellant to go to Zara, or that Zara had asked her to do so.
The trial Court accepted Zara’s version, and did not believe that her elder sister told the appellant to go to Zara; the court observed that Zara had no idea of his being in the house because she was asleep, and he even stabbed Zara, who tried to catch him after he had stabbed her mother-in-law; and the judgement goes on to say:
“The Court found no evidence that you went to Zara’ s house in good faith as you went to her in the midnight and even if you went to commit adultery not for theft you know that Zara is a married woman. You stabbed the deceased when she met you as you felt that they plotted to kill you. How could they plot if you were really asked by Zara to visit her. So the Court has believed that you went to the deceased house intentionally and killed her for no reason.” “Intentionally”, in that con, means with intent to commit an offence; but as the trial Court did not believe that Zara had sent a message to the appellant to go to her no question of adultery truly arises.
As already, stated, the High Court dismissed the appeal. The grounds of the further appeal to our Court are :
1. The Court erred in law by holding on the evidence that ”the case of Durwan Geer” was directly in point, and that the appellant could not claim the protection of subsection (2) of section 222 and sections 59 and 60 of the Penal Code.

2 That the decision is unreasonable and cannot be supported having regard to the evidence.
The argument in support of the 2nd ground was that Zara should not have been believed; she must be a liar, it was submitted. The trial Court gave reasons for believing her which in our opinion were good, and that ground fails.
The provisions cited in the first ground are:-
“59. Nothing is an offence which is done in the lawful exercise of the right of private defence”
“60. Every person has a right, subject to the restrictions hereinafter
contained, to defend:-
(a) His own body and the body of any other person against any offence affecting the human body”
(b) is on defence of property not relevant here).
“222.-(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private offence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.’
From the finding of the trial Court it is clear that in its view the appellant stabbed to kill, and his case came within section 221 (a) of the Penal Code. ‘The Court said that he killed her for no reason, which means that he could not claim any benefit of excuse or mitigation.

The provisions on private defence of person or property are given in sections 59 to 65. When the right of private defence arises under section 60, and there is no time to have recourse to the protection of the public authorities (section 63), no more harm should be done than is necessary to inflict for the purpose of defence (section 62). Section 65 provides that:-
“65. The right of private defence of the body extends, under the restrictions mentioned in sessions 62 and 63, to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely :-

(a) An attack which causes reasonable apprehension of death or grievous hurt; or

(b) Rape or an assault with the intention of gratifying unnatural lust; or

(c) Abduction or kidnapping. ‘ ,

In effect, one may kill if one must to repel a grave assault on personal liberty, honour, or life and limb, and it is not an offence when the killing is done within the limits laid down in section 62 of doing no more harm than is necessary.

On the other hand, it is an offence if the killing exceeds the limits laid down, and then the question of punishment arises. Should the killer be sentenced to death for his offence; or should be liable to a lesser punishment Having done an act which amounts to culpable homicide punishable with death under section 221, he would have been liable to sentence of death, but for the exception in his favour provided in subsection (2) of section 222, which makes his offence non-capital. The  has been quoted; it recognises that a person who kills in the bona fide exercise of the right of private defence when there was no need to, should not be punished with death. This case is no more heinous than that of one who kills through loss of self-control upon grave and sudden provocation within the provisions of subsection (1) of section 222: it is the case of one who exceeds the limits of private defence in good faith through error of judgement. That we apprehend to be the scheme of the Penal Code, but we did not have the benefit of argument on the subject.

‘The appellant invented his story of being invited by Zara to lend colour to his apprehension of a plot against him when seized by the deceased; the question of private defence could not be considered in that untrue light. Mr Gaji posed the question whether a burglar has a right to defend himself. Put in those scant terms, it is academic: a question cannot be considered except in the light of the facts of the case before the Court.

The facts are that the appellant entered by stealth, about mid-night, the house of the deceased, which was shut and of which the inmates were asleep, with the intention of committing an offence, and when caught by the deceased, he stabbed her mortally to effect his escape. The question in limine is whether; the fact that the deceased woman seized him was a lawful act of arrest: if it was, then it seems to us that no question of self-defence could arise. It would be most strange and, indeed, most dangerous, if a person when lawfully caught in the commission of a grave offence could kill to effect his escape and plead that he was acting in self-defence. The wording of section 60 of the Penal Code is “against any offence affecting the human body”; it is such an offence which gives rise to the right of offence, but learned counsel for the appellant did not address us on that point, or refer to the relevant provisions on the right to arrest conferred by section 28 of the Criminal Procedure Code on private persons, which provides (partly) that
“28. Any private person may arrest:-
(a) Any person committing in his presence an offence for which the police are authorised to arrest without a warrant’.”
This harks back to section 26, which (partly) provides that:- “26. Any police officer may arrest:-
(a) any person who commits an offence in his presence notwithstanding any provision in the third column of Appendix A that an arrest may not be made without a warrant.”

According to Appendix A, the police may arrest without warrant for anyone of the offences specified in sections 349 to 356 of the Penal Code, which relate to house trespass and aggravated forms of it; from which it appears that the deceased was exercising a lawful right of arrest in seizing the appellant and was not committing any offence in so doing which gave him any right of private defence.

It seems to us that the plea of self-defence fails at the threshold of it, and no question truly arises either on whether the appellant had any reasonable apprehension of death or grievous hurt or whether he exceeded the limits of self-defence. In any event, we would add that the case could not be brought under section 65 because there was no reasonable apprehension of death or grievous hurt when he was seized by the deceased woman; neither could it be brought under subsection (2) of section 222: for the mitigation in it operates where in the bona fide exercise of the right of private defence that right is exceeded, and the homicide is non-capital upon condition that the offender is exercising that right:-

(i) Without premeditation; and

(ii) Without any intention or doing more harm than is necessary for the purpose of such defence.

Here we have a person who entered by stealth, at midnight, a house which was shut and of which the inmates were asleep, with the intention of committing an offence; he was carrying a knife, and when he was seized by the deceased woman he stabbed her mortally to effect his escape. Can it be said reasonably that in killing her he was exercising a right of self-defence in good faith without premeditation, and without any intention of doing more harm than was necessary It cannot. We agree with the view of the trial Court that he had no reason to kill the deceased.

We have considered the case in the light of sections 65 and 222 (2) on the assumption, favourable to the appellant, that they could apply; we have done so because there was no argument on the right of arrest, on which we hope to hear argument some other day. Upon any view the conviction for culpable homicide punishable with death was correct, and the dismissal of the appeal to the High Court was right. We therefore dismissed the appeal at the hearing.


F.S.C.430/1962

Patrick Nwafor Muonwem And 4 Ors Vs The Queen (1963) LLJR-SC

Patrick Nwafor Muonwem And 4 Ors Vs The Queen (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, AG. C.J.F

The five ap­pellants were convicted of murdering a police officer named Bamford Amazama at Onitsha on the 2nd June, 1962. In substance, the facts which the Judge found proved were as follows.

On the night of the 2nd June, the 1st appellant and one Odili engaged a number of labourers, including the 3rd and 5th appellants, to off-load twelve drums of diesel oil from a canoe and load them on to a lorry.

A fisherman named Michael Kemefasu, who is nicknamed “Hitler”, and who is also a police informant, observed what was going on. He evidently thought there was something significant about it and he went to the house of the deceased and reported what he had seen. The deceased had recently undergone an operation for hernia, and was only fit for light duty, but he put on his uniform, took his baton, and went to the beach accompanied only by “Hitler” and by a special constable named Michael Uzo.

On arrival there he asked who the owner of the drums was and was directed to the 1st appellant and Oddity, with whom he entered into conversa­tion. Shortly after this the 1st appellant went away. An attempt was made to load the drums on to the lorry but was abandoned when the deceased forbade it. The 1st appellant returned, accompanied by the 2nd and 4th appellants and the drums were loaded on the lorry, but the deceased entered the lorry and sat in the driver’s seat, to prevent its being driven away. Later “Hitler” said something to the deceased in Ijaw, and he left the lorry and allowed it to be driven away.

The 1st appellant then said to the deceased – “I have you today; give me back that money. Show me your card”, and grasped him by…. the neck of his shirt. The deceased merely laughed, but the 1st appellant seized his baton and they started struggling for it. The 1st appellant then called on his labourers to join him in beating the deceased and his men, and the 3rd and 4th appellants at once joined in the attack on the deceased. The 2nd and 5th appel­lants, assisted by one Azubuike Odachi, who gave evidence for the prosecu­tion, gripped “Hitler” and knocked him down; “Hitler” got up and ran away and the 2nd and 5th appellants then joined the other three in attacking the deceased. Michael Uzo, the special constable, jumped into the river and was not seen again that night.

The five appellants beat and “pushed” the deceased in the direction of the river, the 1st appellant using the baton to beat him with and the others their hands. They finally threw his body, apparently lifeless, into the river. The body of the deceased was not recovered until about 5.45 a.m. on the 4th June, when it was found floating in the river. A post mortem examination showed bruises indicating a severe beating on the head, upper chest and left knee; the thyroid cartilage was fractured and the uppermost part of the rings of the trachea was severely bruised and swollen. In the doctor’s opinion death was caused by asphyxia or suffocation due to manual strangu­lation; he considered the possibility of death by drowning but was of the opinion that the condition of the lungs and stomach discounted this. Only one point of substance has been argued in this appeal, and before dealing with it will be convenient to dispose of certain subsidiary matters. Nothing turns on the fact that the witness Azubuike Odachi may have been an accomplice, since his evidence was corroborated both by “Hitler” and by a night-watchman, who were not accomplices, but it is submitted that as all the events concerned took place at night the witnesses could not have seen what they said they did. This was essentially a question of fact for the Judge and we cannot say that on the evidence it was unreasonable for him to accept their story as a credible one. Then it is said that the witnesses only saw the deceased being beaten and pushed and did not see anyone grasping his throat in order to strangle him. He was a strong swimmer and it is submitted that the evidence does not exclude the possibility that he recovered con­sciousness after being thrown into the river, and was strangled later by some other person.

We agree with the Judge in regarding this as so improbable that it need not be considered seriously. Finally, it should be pointed out that no complaint is made because the Judge disbelieved the evidence of the appellants and their witnesses and that the argument in this Court has turned solely on the sufficiency of the evidence for the prosecution. The main argument for the appellants is that even if it was proved that one of them killed the deceased by manual strangulation the evidence does not show which of them it was and the circumstances are not such that they can all be held guilty for the act of one. In convicting the appellants the Judge referred to section 8 of the Criminal Code, which provides that “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” In our view section 8 of the Criminal Code was rightly applied in this case. In R. v. Ofor and Ofor (1955), 15 W. A. C. A. 4, on which the appellants chiefly rely, the evidence was open to the construction that the two accused persons formed an intention to kill independently of one another and that they had no “common intention to prosecute an unlawful purpose in con­junction with one another”. In the present case the 1st appellant called on the others to join with him in attacking the deceased and his companions and it was in response to that call that they did so.

They had manifestly a common intention to act in conjunction with one another in committing an assault. Where a number of persons join in an unlawful assault it is a question of fact in every case whether the death of the person assaulted is a probable con­sequence of that particular assault.

In the present case we consider that the odds of five to one, the use of the baton, and the signs of severe beating about the head, chest and knee of the deceased, coupled with the throwing of his body into the river as soon as he appeared to be dead, all indicate an as­sault of such violence as to justify the Judge in holding that there was a com­mon intention at least to do grievous harm, and that the killing of the de­ceased in circumstances amounting to murder was a probable consequence of the prosecution of that intention. In the result the appeals of the five appellants are dismissed.


Other Citation: (1963) LCN/1076(SC)

Federal Supreme Court Salawu lanlokun Bola v. Archdeacon S.V. Latunde And Lanlokun Bola Ogunpa v. St. James’s Church Ogunpa, Ibadan (1963) LLJR-SC

Federal Supreme Court Salawu lanlokun Bola v. Archdeacon S.V. Latunde And Lanlokun Bola Ogunpa v. St. James’s Church Ogunpa, Ibadan (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, F.J.

This matter arises out of a judgment given by the late Sir Olumuyiwa Jibowu, C.J., in the High Court of the Western Region on the fifth February, 1959, and first came before this Court as long ago as the 29th April, 1960. Since then, numerous applications have been made both to this Court and to the High Court, but the desired result, of obtaining a hearing on the merits, has not yet been achieved.

Jibowu, C.J., had before him a suit brought in the original jurisdiction of the High Court, 1/227/1955, and an appeal from a native court, 1/61A/56, in which he had decided to rehear the case de novo. The original suit and the appeal concerned the same land, and the parties represented the same interests, and by consent the two matters were consolidated for hearing, and a single judgment was delivered. It was in favour of the present respondents and against the Bola family, and the Bola family gave notice of appeal to this Court.

When the appeal came up for hearing the respondents raised objections both to the grounds of appeal originally filed and to certain of the additional grounds filed. One of these objections was that although an appeal lay as of right against the decision in suit 1/227/1955, it only lay by leave of this Court or of the High Court in appeal 1/61A/56, and leave had not been obtained. The Court upheld this objection, and the relevant passage of the ruling reads:

“The appeal 1/61A/56 is not before us. Mr Kotun if he so desires can go to the High Court and obtain leave in respect of the appeal.
We are prepared to hear arguments on 1/227/55.

Kotun asks for adjournment; wishes the two to be taken together. Adjourned sine die: Liberty to either side to apply for hearing date.”

It is unnecessary to trace in detail the various steps taken by the appellants since then, but the salient facts must be stated. On the 24th October, 1960, the High Court granted leave to appeal on an ex parte motion, but on the 14th November, 1960, this was rescinded on the motion of the respondents. After inconclusive proceedings had taken place in this Court on the 6th February and 6th March, 1961, a fresh application was made to the High Court on the 18th September, 1961, and was dismissed on the 19th February, 1962, on the ground that an extension of time for making the application had not been granted by this Court. Notice of the present motion was given on the 30th October, 1962; as regards 1/61A/56 the motion asks for an extension of time within which to apply for leave to appeal, and for the grant of such leave.

There is no doubt that the applicant has been guilty of serious delays in bringing his application, and it is not a complete explanation to say, as he does in his affidavit in support of the motion, that he has been “seeking legal advice both in this Country and in the United Kingdom”.

While we recognise that there may be inconvenience in allowing two matters which were consolidated by consent in the High Court to be disposed of, one by the judgment of the High Court and one by that of this Court, we cannot say that the applicant has shown a sufficiently strong case for the grant of the extension which he asks for and the application is refused as regards 1/61A/56.

We would add, although the matter was not argued before us, that it appears doubtful whether we should have had jurisdiction to grant the extension. For this purpose we have to look at the law as it stood on the 6th February, 1959, when the judgment of the High Court was delivered.

Section 49 of the Customary Courts Law had conferred a right of appeal to this Court, but the right had to be exercised in accordance with the provisions of the Federal Supreme Court (Appeals) Ordinance relating to appeals from Native Courts, which required the leave of the High Court to be obtained under section 7 of that Ordinance: Odedina v. Fashina (1959) 4 F.S.C. 77. Order XLIV A, rule 1, of the Supreme Court (Civil Procedure) Rules laid down that application for leave to appeal must be made to the High Court within fourteen days of the decision against which leave to appeal is sought, and since no provision was made for this matter in the High Court (Civil Procedure) Rules of the Western Region it is arguable that section 72 of the High Court Law kept this provision in force notwithstanding section 49 (3).

Furthermore, what ever time may have been limited for the making of an application to the High Court, rule 14 (4) of the former Test African Court of Appeal Rules provided that any application for an extension of time must be made within one month from the expiration of the time within which the appeal might be brought.

This rule was held in Douglas v . Federal Public Trustee (1959) 4 F.S.C. 15 to apply to appeals from decisions of the High Court given in its appellate jurisdiction, and therefore applies in this case. This Court now has unlimited powers of extending the time in civil cases, but it was held in Adeleke v. Cole [1961] All N.L.R. 35 that the power could not be exercised in a case in which all rights relating to appeal had expired before the 2nd June, 1960, when the Federal Supreme Court Act, 1960, came into operation.

As regards the appeal in suit 1/227/1955, the position is complicated by what took place in this Court on the 14th December 1960, when the appellant was represented by Mr Makanju. The record contains the following passage:-
“This is the case 1/227/1955.
Makanju: Leave to appeal has been refused by the High Court. I now ask for leave of this Court.
Court: Leave is refused.”

This Court had previously held that the appeal was properly before it, and it might have been possible to hold that leave to appeal was refused merely because it was unnecessary but unfortunately the formal order drawn up in consequence of this decision was one dismissing the appeal, and as long as this order remains in force the appeal stands dismissed.

Every court has inherent jurisdiction to ensure that its order carries into effect the decision at which it arrived: Unnanse v. Unnanse [1950] A.C. 561; and if necessary Order 28 rule 11 of the Rules of the Supreme Court in England might be invoked by virtue of Order 7 rule 36 of the Federal Supreme Court Rules. This would appear to be a proper case for exercising the power of amending the formal order, but there is high authority for saying that the correction ought to be made upon motion to that effect, unless the parties consent to the Courts dealing with the matter as if the necessary motion had been brought: Hatton v.Harris [1892] A.C. 547.

In the present case, if the parties consent the order will be amended so as to bring it into conformity with the decision given in open court on the 14th December, 1960, and an order will be made, as prayed, substituting Samuel Dehinde Latunde and Mrs Ebun Akinshete, the administrator and administration of the estate of the late Archdeacon S. V. Latunde, for him as respondents to the appeal in suit 1/227/1955.

If the parties do not consent to our taking this course the motion will stand over for four weeks so as to give the appellant the opportunity of lodging a separate motion for the correction of the Court’s order.


F.S.C.49/1960