Abu Bakare V Inspector General Of Police (1967)

ADEMOLA, C.J.N.

The appellant was charged before the Acting Chief Magistrate, Lagos on two counts, namely:-

1. Unlawful carnal knowledge contra section 357 Criminal Code and

2. Unlawful and indecent assault contra section 360 Criminal, Code.

The learned Chief Magistrate discharged him on the second count, about which more anon; on the First count he found that penetration was not proved and therefore convicted him of an attempt to commit the offence sentencing him to a term of 4 years I.H.L.

On appeal before the learned Chief Justice of the High Court, the learned Chief justice found that on the evidence before the learned Chief Magistrate it was clear that penetration was proved, and that the appellant should have been convicted of the full offence.

In the penultimate paragraph of his judgement, the learned Chief Justice said-

“By virtue of the powers vested in me under section 36 (2) ( C ) of the High Court of Lagos Act, and after hearing counsel for the appellant, I annul the conviction and convict the appellant of rape. The sentence will, however, stand.”

Now it is obvious that reference to section 36 of the High Court Act was clearly wrong as this section of the act deals mainly with the supervisory powers of a judge. Section 36 (1)empowers the chief Justice of the High Court of Lagos to request specified magistrates or all magistrates to forward to him or any other judge at the expiration of every calendar month, a list containing all criminal cases, or specified criminal cases decided by or brought before such magistrates.

Section 36 (2) reads

“Upon receipt of such list the judge may if he thinks fit call for a copy of the record of any case included therein, and, either without seeing such record or after seeing such record as he may determine, and either without hearing argument or after hearing argument as he may determine, may, in relation to the judgment, sentence or other order of the magistrate,

Annul the conviction and convict the accused of any offence of which he might have been convicted on the evidence, and sentence him accordingly: Provided however that any sentence so awarded shall not be greater than the sentence awarded by the magistrate. ‘

It is clear that the learned Chief Justice was not exercising his powers of revision here, and we assume that this reference to section 36 (2)(c) was really a mistake for section 40 of the High Court Act which deals with the power of the High Court in criminal appeals from magistrates. The provisions of section 40 of the High Court of Lagos Act with the relevant sub sections are as follows-

’40. On the conclusion of the hearing of an appeal from the Magistrates Court in a criminal case the High Court shall at the same or any subsequent sitting pronounce judgement on the appeal and in giving such judgement the court may

(a) On an appeal against a conviction, or against both conviction and sentence

(i) affirm the conviction, or conviction and sentence; or

(ii) quash the conviction and sentence and acquit or discharge the appellant, or order him to be retried by a Court of competent jurisdiction or commit him for trial; or

(iii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or …”

The question is into which of the three categories of section 40 (a) can we classify the act of the learned Chief Justice when he said ‘I annul the conviction and convict the appellant of rape.’ ?

Counsel for the appellant has urged us to say that he was acting under section 40 (a) (ii) because the order of annulment is tantamount to quashing the conviction. After quashing the conviction, counsel argued, it was open to the learned Chief Justice to make one of the three consequential orders in the subsection, namely, quash the sentence, and acquit or discharge, or order the appellant to be tried by a court of competent jurisdiction or commit him for retrial. Not having done any of these, counsel argued, the mere annulment of the conviction means that the conviction has been completely washed out and it was not competent again for the learned Chief Justice to convict and sentence.

Learned senior state counsel agreed that it would appear that the Chief Justice was acting under section 40 of the High Court Act, but felt that subsection (a) (iii) was appropriate in the circumstances.. and that under this the learned Chief Justice had the power of substitution after annuling the conviction.

We are unable to agree with the learned senior state counsel on this because there is nothing in subsection (a) (iii) to suggest that the court may annul a conviction before altering a finding. We agree with the decision in The Commissioner of Police v. Ayiku, 5 W.A.C.A. 89, and in our opinion, where on appeal the court thinks section 40 (a) (ii) is appropriate and quashes a conviction and sentence, one of the three consequential orders under the subsection must be pursued by the court.

We have given some consideration to this case and we have come to the conclusion that in the circumstances it would be best to quash the conviction and sentence passed by the learned judge of appeal and order that the appellant be retried in the High Court and we so order. We cannot understand why he was tried in the Magistrate Court in the first instance for an offence of such a nature.

We observe in the record of appeal that the learned magistrate who heard the case acquitted the appellant on the second count of indecent assault, and the reason given was that the evidence on that charge was the same as on the first count. This is clearly wrong. A cursory glance at paragraph 311 of Brett and McLean Criminal Law and Procedure’ would help the learned magistrate in future. The answer, in such circumstances, is for the court to abstain from recording anything on the other count.

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Other Citation: (1967) LCN/1536(SC)

Marouf Adeleye Kasunmu V J.m. Scott And Others (1967)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

The appellant in this appeal was the plaintiff in the High Court of Lagos, when his writ read as follows:-

“The plaintiff claims against the defendants jointly and severally possession of the premises known as 141 Brickfield Road, Ebute-Metta which the defendants are occupying and of which premises the plaintiff is the fee simple owner.

The defendants have denied and continue to deny the title of the plaintiff.

There is no relationship of landlord and tenant between the plaintiff and the defendants.”

Crane Ag. J. on the 3rd of January, 1963, dismissed this claim with 25 guineas costs.

The plaintiff’s case was that the property in dispute vested in one G. O. Laja by a conveyance (exhibit A) on the 3rd of May, 1949 and this was admitted by all 4 defendants, the first, second and third defendants being subsequently tenants of G. O. Laja. On the 7th of April, 1960 G. O. Laja mortgaged the property for £7,500 to his sister-in-law, Maria Ade Peters by a deed (exhibit B) with a proviso for redemption. The fourth defendant alleged that this mortgage was in fraud of the creditors but the learned trial Judge said in regard to it-

“I should here say, that the allegation of its being a disposition in fraud of creditors is inconclusive, more especially since Okupe became Laja’s judgment/creditor on March 16, 1961 that is to say, after the date of the mortgage to Peters. Before that date however, is must be made clear that Laja was Okupe’s judgment/creditor by virtue of the judgment in the High Court of Lagos, on December 7, 1959, which was reversed by the Federal Supreme Court, on March 16, 1961. Unless of course it could be said that Laja had anticipated the reversal of the judgment of the High Court, it cannot be said in all probability that the mortgage to Peters was in fraud of Okupe.”

In May 1961, as a result of obtaining judgment against G. O. Laja there were proceedings by the judgment/creditor in the High Court of Lagos against G. O. Laja in respect of the property now in dispute and in those proceedings Maria Ade Peters interpleaded, but de Lestang C.J. dismissing the application of Maria Ade Peters said-

“In my view the applicant has no locus standi in this case. If she has a mortgage on the property her rights will not be interfered with. As regards the action before the court it is for the plaintiff in that action to take steps to prevent the sale of the property If he so desires.”

As a result on the 26th July, 1961, the property in dispute was sold by order of the court by the Deputy Sheriff to the 4th defendant as the highest bidder. In August 1961, Maria Ade Peters by virtue of her powers as mortgagee advertised the property for sale and on the 5th of October, 1961 the property was sold to the plaintiff/appellant and in December, 1961, conveyed to him. On the 12th March, 1962, the fourth defendant obtained a certificate of title from the court which, apart from the description of the property, reads as follows-

“I hereby certify that Samuel Adekunle Fisher of 23 Koseh Street, Lagos has been declared the purchaser of the right, title and interest of the above named defendant, G. O. Laja In the land, messuages, and tenements hereinafter mentioned.”

The issue before the learned trial Judge was, therefore, to determine what it was that the fourth defendant obtained when he bought the property by virtue of the order of the court on the 28th July, 1961.

Counsel for the fourth defendant argued that the fourth defendant got an absolute interest in the property whilst Chief Williams for the plaintiff submitted that all that the fourth defendant could get, was the right, title and interest of G. O. Laja and that at the time of the sale the property was subject to the mortgage to Maria Ade Peters. The learned trial judge in his judgment said one point that arose was that-

“The purported sale between the plaintiff and Maria Peters is collusive and invalid, and having considered the evidence with due care, I am of the opinion that this plea Is well founded, it being perfectly clear that both Peters and the plaintiff knew that 141 Brickfield Road was sold by order of court to the fourth defendant Fisher.

This fact did not elude Chief Williams who, in justification of the sale, argued that all Fisher could buy at the execution sale was the right, title and interest of Laja which was at the time of the judicial sale the equity of redemption in the property, the legal fee simple being resident at the time In Maria Peters which she was free to dispose of as she pleased.

But I am afraid that highly attractive as this argument sounds, it cannot altogether bear the light of examination; for whilst it is unimpeachable with regard to the interest which Fisher purchased, it is undefensible with regard to the alleged freedom of Peters to dispose of property under attachment by court order, the legal effect of attachment being to bind the property in the hands of whomsoever shall happen to be in possession of it, so that he is not free to deal with it.”

The learned trial Judge went on to refer to Order 5, Rule 7 of the Judgments (Enforcement) Rules, which in our view does not assist, and to the warning given at the sale to the plaintiff that the property had already been sold by order of the court and found that the “purported sale from Peters to Fisher being by law null and void concludes the matter.” Chief Williams has submitted before us the same arguments which he submitted to the learned trial judge, but which he rejected, that all that the fourth defendant got by virtue of the sale by order of the court was, as section 50 of the Sheriffs and Civil Process Act stated ‘the right, title and Interest of the judgment debtor’ and this was what was stated in the certificate of purchase from the court (exhibit G), to which we have already referred. He further submitted that this was supported by the judgment of de Lestang, C.J. in the inter-pleader summons which we have quoted earlier in this judgment. He submitted that it was clear from Ghana Commercial Bank v. Chandiram [1960] A. C. 732 that the purchaser of the right, title and Interest took subject to any existing en-cumbrance of the property as was shown by the judgment of the Privy Council delivered by Lord Jenkins when he said at page 743-

“In the Ghana Court of Appeal Van Lare J. A. delivered a judgment with which the other two members of the court agreed. That judgment contains the following statement of the law relating to the position of a purchaser under the execution of a fi. fa., which appears to their Lordships to be wholly correct:  ‘The law is dear that a purchaser of a property under the execution of a fi-fa steps into the shoes of the judgment debtor by purchasing no more than the ‘estate’ of the judgment debtor therein.

In other words what is sold and what is bought at a sale in execution is the right, title and interest of the judgment debtor – Dadzie v. Kojo (1940) 6 W.A.C.A. 139. It follows therefore that If a certain property which is attached under execution by way of fi. fa turns out to be in any way encumbered the purchaser buys subject to that charge or encumbrance.’

The learned J. A. went on to say that the case would have taken a different turn had Barclays still remained at the date of the sale the party interested in the encumbrance, thereby, as it seems to their Lordships, indicating the view that, in accordance with his statement of the law as quoted above, Barclays, had they retained the equitable mortgage, could have enforced it against the property in the hands of the purchaser.”

and went on to say at page 711:

“In their Lordship’s opinion, it follows from their acceptance of Van Lare J. A.’s statement of the law as quoted above (to which may be added a reference to the observations of Lord Chelmsford 1n Wickham v. New Brunswick and Canada Railway Co. (1865) L. R. 1 P.C. 64, 75, 76 that the attachment of September 25th 1954, took effect subject to Barclays’ interest as equitable mortgagees. It furthermore appears to their Lordships that, being outside the ambit of the attachment, the benefit of Barclays’ equitable mortgage continued after 25th September, 1954, to be capable of assignment or devolution, whether by express disposition or by operation of law or by the application of equitable principles, just as it would have been if the attachment had never taken place.”

and at page 745-

“Their Lordships accordingly hold that by paying the amount due to Barclays the Ghana Bank became entitled to the benefit of the equitable charge with the same priority for the amount thereby secured ’as had theretofore been enjoyed by Barclays.”

The West African Court of Appeal had earlier adopted the same approach in Dadzie v. Kojo 6 W.A.C.A. 139 when that court said-

“The main ground for his decision was that the first defendant bought the land under a fi. fa sale and got a Certificate of Purchase. But actually all that the first defendant bought was Kweku Mensah’s right, title and interest in the land. What Kweku Mensah’s right, title and interest was is a question of fact and the Native Tribunal found as a fact that his right, title and interest were that of a tenant only.”

In our judgment, therefore, the submission of Chief Williams is correct and all that the fourth defendant took was the property subject to the mortgage, so that the power of sale under that mortgage having been effectively exercised the fourth defendant took subject to the tide of the plaintiff.

The learned trial Judge did also deal with a point raised under the Distress for Rent Act, 1737 and, though we find that he was in error in so doing, we do not consider it necessary to deal with it as In our view the matter is disposed of for the reasons we have given.

The appeal is accordingly allowed, the decision and order of the High Court is set aside and judgment is entered for the plaintiff in terms of his wr

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Other Citation: (1967) LCN/1373(SC)

The Council Of The University Of Ibadan V N.k. Adamolejun (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

For the avoidance of doubt in regard to appeals in proceedings which were already in existence at the time when the Court of Appeal was set up in what was formerly known as the Western Region of Nigeria, and in order to facilitate further steps which may be deemed desirable in the present circumstances, we have decided to record here briefly our views and decision in the motion before us, spending such time as we shall give full reasons for our judgement.

We are in no doubt that section 35 of the Court of Appeal Edict, W.N., No. 15 of 1967, is inconsistent with the right of direct appeal from the High Court to the Supreme Court under section 117 of the Constitution of the Federation.

The aforesaid section 35 of the aforesaid Edict (No. 15 of 1967) is therefore, in our view, by reason of inconsistency void, pursuant to section 3 (4) of Degree No.1 of 1966.

We are therefore of the opinion that this Court is competent to entertain the present application before it. The appeal, the Area Of Law of the motion before us should, in our view, come to the Supreme Court directly for hearing, and we do hereby grant the prayers sought in this application.

ADEMOLA, C.J.N. (giving the reasons for the decision of the Court)-We now give reasons for allowing the application of the defendants in this matter. Arguments were heard by us on the 12th and 13th June, and on Monday, the 26th day of June, 1967, we delivered our judgement.

The defendants in the above-named matter were aggrieved by the judgement given in the High Court of Ibadan, delivered by Kester, Acting Chief Justice, on1st November, 1966.

On the 4th November, 1966, the defendants filed notice of appeal against the judgement, and on 2nd June, 1967, applied for an order for accelerated hearing of the appeal and for a consequential order directing the Registrar of the High Court of Ibadan to despatch the record of appeal to this Court for the purpose of hearing and determination of the appeal.

The affidavit in support of the motion states, inter alia,that the preparation of the documents to be in the record of appeal has been unduly delayed. The last three paragraphs of the affidavit are as follows:-

‘9. That the composition of the Council of the University of Ibadan had been altered and the new Council consists largely of new members.

10. That Chief Williams has informed me and I verily believe that at its first meeting on the 18th of May, 1967, the new Council decided that necessary application be made for the accelerated hearing of the case involving the plaintiff who was the Registrar of the University at all material times.

11. That to the best of my knowledge, information and belief, the reasons why the Council desires an accelerated hearing are as follows:-

(a) The uncertainty about the validity of the claims of the Registrar against the Council has made it difficult for the largely new members of the Council to come to a final decision of the issue.

(b) The members of the Council are anxious to know the limits of their powers and those of the Vice Chancellor which are in issue in these proceedings.

(c) The members of the Council are anxious to know the extent to which their actions and decisions (and those of other functionaries such as Vice-Chancellor) are subject to the jurisdiction of the Ibadan High Court, particularly having regard to such jurisdiction as is or may be vested in the Visitor of the University.

(d) It is desirable and expedient in the public interest and in the interest of the University and its future administration to have a decision of the highest judicial authority in the land on the questions afore-mentioned.’

On 19th May, 1967, the Military Governor of Western Nigeria made the Court of Appeal (Commencement of Provisions) Notice, 1967 (W.N.L.N. 19/1967) bringing into operation with effect from 1st April, 1967, the provisions of sections 52 and 53 of the Constitution of Western Nigeria, which relate to a Court of Appeal within the Region. On the same day, namely, 19th May, 1967, the Military Governor also made the Court of Appeal Edict, 1967, No. 15 of 1967, which by virtue of section 1 thereof shall be deemed to have come into force on the 1st day of April, 1967. The Edict contains provisions relating to the powers, etc. of the new Court of Appeal. Section 35 makes transitional provisions in relation to pending  appeals from the High Court of the Region to the Supreme Court; it provides in subsection (2), inter alia, that any notice of appeal given before the 1st day of April, 1967, ‘with respect to any proposed appeal (not being a pending appeal) to the Supreme Court … from any decision of the High Court … shall be deemed for all purposes to have been given … with respect to a proposed appeal, … to the Court of Appeal,’ and subsection (4) states as follows:-

‘(4) In this section:-

pending appeal means an appeal which has been entered in the Supreme Court, so however that an appeal shall be regarded as having been entered as aforesaid only where the records thereof have been received in the Supreme Court and entered on the cause list in accordance with the rules of that court.’

The arguments before us turned on whether this appeal should be heard in the Supreme Court directly or whether the effect of section 35 of the said Court of Appeal Edict (hereinafter referred to as the Edict) is that the appeal is to be heard first in the Court of Appeal. Arguing for the defendants/applicants Chief F. R. A. Williams submitted that the appeal should be heard directly in the Supreme Court. Mr Yinka Ayoola for the plaintiff whilst agreeing that accelerated hearing was desirable, opposed the application on the ground that the application could not be entertained in this Court because the appeal must be heard first in the Court of Appeal. We also heard the submissions made by Dr Ajayi, the learned Attorney General of the Western State, and Dr Elias, the learned Attorney-General of the Federation. Before dealing with the arguments advanced before us it is necessary to give a brief statement of the relevant provisions pertinent to this matter. Under section 127 of the Republican Constitution of the Federation of 1st October, 1963, special provisions are made as to Regional Courts of Appeal.

The section reads:-

‘127:-( 1) If by the Constitution or the Legislature of a Region there is established for the Region a Court having jurisdiction to hear and determine appeals in any matter from the High Court of the Region, then- (a) sections 115 and 117 of this Constitution shall have effect, in relation to that matter, as if any reference in those sections to the High Court of the Region were a reference to the Court having jurisdiction as aforesaid and as if the words ‘sitting at first instance’ wherever they occur in section 117 were omitted; and

(b) [This is irrelevant].

(2) Subsection (I) of this section shall come into force on such date as the President may by order appoint; but an order shall not be made under this subsection unless a draft of the order has been laid before both Houses of Parliament and approved by resolution of each House.”

The 1963 Constitution of Western Nigeria provided for a Court of Appeal as an intermediate appellate court between the High Court of the Region and the Supreme Court. We are here concerned with sections 52 and 53 of the Constitution of Western Nigeria. Section 52 states that ‘there shall be a Court of Appeal for the Region’; this is followed by provisions for the constitution of the court, methods of appointment of judges and their tenure of office, and ends with subsection (10) which states that ‘The provisions of this section shall come into operation on such date as the Governor may appoint’. There can be no doubt, however, that it would have been useless for the Governor to bring the court into being without ensuring in advance that he had the necessary approval under section 127 of the Constitution of the Federation herein-before referred to. Section 53 of the Constitution of Western Nigeria sets out the cases in which an appeal shall lie from the High Court to the Court of Appeal.

Now, the question which arises and calls for our consideration is, when a Court of Appeal is set up under an Order made under section 127 of the Constitution of the Federation and the relevant provisions of the Constitution of the Region concerned, what is the effect on appeals-

(a) from decisions of the High Court where notice of appeal to the Supreme Court had been given before the setting up of the Court of Appeal;

(b) from decisions of the High Court given before the setting up of the Court of Appeal where notice of appeal is filed after the Court of Appeal has been set up;

(c) from decisions of the High Court given after the Court of Appeal has been set up where the cause or matter commenced before the Court was set up.

For the applicants Chief Williams prefaced his arguments by referring to the case The Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C. 369 where it was held that although the right of appeal from the Supreme Court of Queensland (Australia) to His Majesty in Council given by the Order in Council of 1860, has been taken away by the Australian Commonwealth Judiciary Act 1903, and the only appeal therefrom now lies to the High Court of Australia, yet the Act is not retrospective, and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. Counsel submitted that to take the right of appeal to a particular court away from that court is an interference with existing rights of the would-be appellant. We were referred to page 372 of the report where the Privy Council said as follows:-

‘As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded.

On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intend

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Other Citation: (1967) LCN/1372(SC)

Joseph Asuquo V The State (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The appellant was tried by Oputa J. at Enugu on four counts; he was convicted on the 2nd only and has appealed. This count states as follows :-

STATEMENT OF OFFENCE: COUNT TWO

‘Attempting to induce witness to withhold true testimony in a case, contrary to section 121 (b) of the Criminal Code.

PARTICULARS OF OFFENCE

Joseph Etim Joseph Asuquo and Efiong John Ndekhedehe, on the 18th day of March, 1966, at Emene, Enugu in the Enugu Judicial Division did attempt to induce Allison Onya, who was to be called as a witness in the case of Stealing against the said Joseph Etim Joseph Asuquo and Efiong John Ndekhedehe, to withhold true testimony.’

(A nolle prosequi was filed in regard to the other defendant, E. J. Ndekhedehe.) The case against the appellant was that at a time when the Police were investigating an allegation that he, a government employee, had used government materials to have furniture made for himself, he approached the person named (Allison Onya) and asked him to lie to the Police when interviewed for a statement.

At the close of the prosecution case counsel for the defence submitted that section 121 (b) meant that there was a judicial proceeding in existence but here the Police had not instituted a prosecution; he was overruled for reasons given later in the judgement, and that submission has been repeated on appeal.

Section 121 (b) provides as follows-

‘Any person who-

(b) attempts by any other means to induce a person called or to be called as a witness in any judicial proceeding to give false testimony or to withhold true testimony; …………..is guilty of a felony, and is liable to imprisonment for seven years.’

The words witness, judicial proceeding, and testimony make it plain that there is a judicial proceeding in existence. It becomes plainer still when one drafts a count following, as one should, the wording of the section. The count would (for example) allege that the defendant attempted to induce C.D. a person called-or as the case might be, to be called-as a witness in the judicial proceeding between the Commissioner of Police and A.B. in the Magistrates Court at such and such a place, etc.; then it would have been patent that in this case the count did not lie. State Counsel avoided his difficulty by writing in the particulars the words a case of Stealing, which can mean a case under investigation by the police or a case pending in court, and are ambiguous.

Oputa J. agrees that the words a person called as a witness in a judicial proceeding mean that there is a judicial proceeding in existence. He thinks, however, that the words a person to be called as a witness in a judicial proceeding can mean in a judicial proceeding that may be brought later. He refers to Sharpe and Stringer (1937) 26 Cr. App. R. 122 and quotes these words-

‘Public justice requires not only that people should not take steps to conceal a crime or destroy evidence once a summons has been served upon somebody, but also that every crime should be suitably dealt with, and a man who obstructs public justice as soon as a crime is committed and endeavours to avoid the consequences of his wrongdoing by conspiracy with others is just as much guilty of an offence as if he waits until after proceedings are actually pending.’

He thinks that the principle there enunciated applies to all the sections in Chapter XIV of the Criminal Code and applies it in interpreting section 121 (b). The result is that section 121 (b) is extended to include something which the words of the provision cannot embrace: a judicial proceeding does not include anything anterior to the proceeding.

In Sharpe and Stringer the charge was conspiracy to obstruct the course of justice; they had asked a person to lie to the police when interviewed. We have something similar in our section 126 (1), which provides that-

‘126. (1) Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a felony, and is liable to imprisonment for seven years.’

The Federal Supreme Court, in The Queen v. Ekanem (1960)5 F.S.C. 14, dealing with a count under section 126 (1) adopted the principle of, which relates to ‘the course of justice’ -words which cover a wider field than the words judicial proceeding and include also the stage between the commission of an offence and the beginning of the prosecution.

We were also referred to the Queen v. Vreones [1891] 1Q.B. 360. Vreones made up false samples of grain which were to be sent to the Corn Trade Association in London to be used in an arbitration if it should be held.

PAGE| 2

The samples were not used, but he was found guilty of an attempt to pervert the course of justice -words which’ Pollock, B. at page 369 explains as follows:

‘The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice’.

We have something like it in section 126 (2), which provides that-

“(2) Any person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years:”

But we are not dealing with a count laid under section 126 (2). The count here is laid under section 121 (b) ; it could not be, and we think that at the end of the prosecution case the defendant ought to have been discharged on that count.

Mr Cole would like us to hear him on the facts for the sake of the appellants future. We cannot; for the conviction must be set aside and nothing is left for the argument to hang from.

As it was the first time that section 121 (b) came up in an appeal, we asked Mr Adebiyi, the Federal Director of Public Prosecutions, to come and help as amicus curiae, and are grateful to him. He began by supporting the views of Oputa J. ; he ended by agreeing that one should be content with the ordinary meaning of the words in section 121 (b) as it is a sensible meaning on its own.

We have discussed section 121 (b) to the extent that is necessary. It will be enough to refer to section 113 which states that-

‘113. In this Chapter the term ‘judicial proceeding’ includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may be taken on oath, or in or before a customary court whether such tribunal takes evidence on oath or not.’

This larger meaning does not affect the present appeal. We note that the words ‘any proceeding had or taken in or before any court’ fortify our view of section 121 (b).

The appeal is allowed; the conviction and sentence are set aside, and a verdict of acquittal shall be entered on count 2 in the information filed in the Enugu Charge No. E/93C/66.

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Other Citation: (1967) LCN/1490(SC)

Bertram Mekwunye V Director Of Audit (W. N.) (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The Director of Audit surcharged an amount of £1,210-10s-11d upon Bertram Mekwunye, who appealed under section 207 of the Local Government Law (cap 68 in the 1959 Laws of the Western Region of Nigeria) to the High Court; there he failed and then lodged a notice of appeal to the Supreme Court. The respondent (namely the Director of Audit) objects in limine that Mekwunye has no right of appeal against the decision of the High Court.

Section 207 of that law provides as follows:

“207 (1) Any person who is aggrieved by a decision of the auditor on any matter with respect to which he made an objection at the audit and any person aggrieved by a disallowance or surcharge made by the auditor may, where the disallowance or surcharge or other decision relates to an amount not exceeding two hundred pounds, appeal to the Minister, and may in any other case appeal to the High Court: Pro-vided that any appeal under this section shall be lodged by the person aggrieved by the decision, disallowance or surcharge, within thirty days of the decision or disallowance, or of the making of the surcharge, as the case may be.

(2) The High Court or the Minister on such appeal shall have power to confirm, vary, or quash the decision of the auditor, and to remit the case to the auditor with such directions as the High Court or the Minister thinks fit for giving effect to the decision on appeal.,

(3) Where an appeal is made to the Minister under this section, he may at any stage of the proceedings state in the form of a special case for the opinion of the High Court any question of law arising in the course of the appeal, but save as aforesaid the decision of the Minister shall be final.”

The argument for the respondent is that as no further appeal to the Supreme Court is provided for in that Law, one has to look at section 177 of the 1963 Constitution of the Federation and see whether such an appeal lies. If the Director of Audit is a court, then the argument for him is that the case would fall under sub-section (4)(c), which provides for an appeal by leave of the High Court or of the Supreme Court from-

“(c)decisions in any civil or criminal proceedings in which an appeal has been brought to the High Court from some other court.”

Counsel for the appellant does not claim that the Director of Audit is a court, and does not rely on that provision. One of his submissions is that as section 207 of the Local Government Law states that the Minister’s decision on an appeal to him shall be final, but does not state that the High Court decision shall be final, that Law did not intend it to be final but left it open to appeal. This argument presupposes that an appeal automatically lies from any decision of any court except where it is excluded. But that is not the law: it is trite that all appeals exists merely by statute, and that where no provision is made for an appeal to lie from a decision of a court its decision is taken to be final: see Moore v. Tayee 2 W.A.C.A. 43 at page 44, and Onitiri v. Benson (1960) 5 F.S.C. 150 at page 155. That is why, for example, in regard to High Court decisions, the cases in which an appeal shall lie are set out in section 117 of the Constitution.

The other submission for the appellant is that the decision of the High Court in the present case was a decision at first instance, and that an appeal from it lies by virtue of paragraph (a) in subsection (2) of section 117 of the Constitution. The provision is that an appeal shall lie as of right from:-

“(a)final decisions in any civil proceedings before the High Court sitting at first instance.”

The argument is that as the Director of Audit is not a court, the proceedings in the High Court in this case were the first proceedings in a court and may be looked upon as being proceedings in the High Court at first Instance. One cannot get away from the language of section 207 of the Local Government Law, which speaks in subsection (1) of an “appeal to the High Court” from the auditor’s decision, when it involves more than two hundred pounds, and goes on in subsection (2) to confer powers on the High Court which are plainly of an appellate nature.

In addition to the arguments for the parties, the Court had the benefit of hearing Dr. Elias, the learned Attorney-General of the Federation who referred to Halsbury’s Laws of England (3rd edition), volume 9, page 342, and to Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1931) A. C. 275, on what is a court, where the Privy Council enumerated some negative propositions on the subject. Dr. Elias suggested that it was a mistake to regard the auditor as a court on the ground that he could, under section 204 of the Local Government Law, hear evidence on oath  which had inclined the learned counsel for the respondent to think, at first, that the auditor might be regarded as a court. From page 297 of the Privy Council decision it is clear that a tribunal is not necessarily a court in the strict sense because it hears witnesses on oath. We are in agreement with Dr. Elias that the respondent was not a court. (We need not consider whether he was a tribunal.)

Dr. Elias also referred to paragraph (f) in subsection (2) of section 117 of the Constitution which states that an appeal shall lie as of right in:-

“(f) such other cases as may be prescribed by any law in force in the territory”-

and pointed out that there was no provision in section 207 of the Local Government Law for an appeal to the Supreme Court. The Court referred to other instances, e.g. the Registration of Titles Act (1958 Laws of the Federation) which provides in section 98 for appeal from the High Court decision given on appeal from the Registrar of Titles. In the present case more than a thousand pounds is involved: there are appeals for very much less, but it is a question for the legislative authorities whether an appeal from the High Court (or from the Minister)should be provided for. The Supreme Court in the present case is only concerned with deciding whether the appeal from the High Court can be entertained; in our view it cannot be.

Before concluding this judgment we should like to note that Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (supra) is referred to in Rola Co. (Australia) Proprietary Ltd. v. The Commonwealth and another (1944) 69 C.L.R. 185, which discusses at length the attributes of a court and may furnish more guidance when any similar question arises hereafter.

The appeal from the decision dated 6th August, 1964 of the High Court sitting at Asaba in case No. Bit/112A/62 is struck out with twenty-five guineas costs payable to the respondent.

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Other Citation: (1967) LCN/1371(SC)

Alhaji Sule Katagun & 2 Ors (Constituting The Police Service Commission) V M.E.K Roberts (1967)

LawGlobal-Hub Lead Judgment Report

BRETT, Ag. C.J.N.

The respondent was at all material times the Deputy Inspector-General of the Nigeria Police Force, and the appellants were the Chairman and Members of the Police Service Commission established by section 109 of the Constitution of the Federation. After various letters had passed between the respondent and the Commission concerning allegations of misconduct which had been made against the respondent, the Secretary to the Commission addressed a letter to the respondent dated the 10th May, 1965, which read as follows–

Sir,

In view of your letter of 7th May in reply to my FC. 18015/64 of 29th January, the Commission has now directed me to give you 6 months’ notice of its intention to retire you from the Service, as provided for in Section 9(1) of the Pensions Act, the notice to take effect from the date of this letter.

2. May I please be favoured with your acknowledgement of this letter as soon as possible?”

The respondent protested in writing, and in a letter dated the 25th June, 1965 the Secretary to the Commission informed him that the Commission was unable to change its earlier decision and had directed that he be relieved of his duties forthwith.

On the 8th July, 1965, the respondent took out a writ against the Attorney-General of the Federation and the Police Service Commission; later he obtained leave to substitute the three appellants by name for the Commission. The relief asked for was–

“. . . a declaration that the purported Notice of intention to retire him and his subsequent retirement from the service of the Nigerian Government under Section 9(1) of The Pensions Act, which notice was served on him by the 2nd defendants, is illegal, ultra vires and of no effect.”

After a motion to dismiss the suit as not maintainable against the defendants had been refused, pleadings were ordered, and a Statement of Claim was filed. The defendants then brought a motion under Order 28 of the High Court (Civil Procedure) Rules, asking for–

“… an order that the suit herein be dismissed without any answer upon the questions of fact being required from them on the ground that (a) this Honourable Court has no jurisdiction to entertain these proceedings against the 2nd, 3rd and 4th Defendants/Applicants; (b) that the proceedings disclose no cause of action against the Defendants/Applicant’s (c) that they are frivolous, and an abuse of the process of this Honourable Court and for such further order or orders as this Honourable Court may deem fit to make in the circumstance.”

The motion was heard by Taylor, C.J. He gave judgment dismissing the Attorney-General of the Federation from the suit and no appeal has been brought against this decision. He refused to dismiss the suit against the three appellants summarily, and the present appeal is brought against that refusal.

Two grounds of appeal were filed, but one was abandoned and the only ground argued in this Court read-

“The learned Chief Justice erred in law when he failed to consider that the powers exercisable under Section 9(1) of the Pensions Act can only be exercised by the Police Service Commission having regard to Sections 1, 109, 110 and 156 of the Constitution of the Federation and Section 10-(2) of the Interpretation Act, 1964.” Section 9 of the Pensions Act reads

“9. (1) It shall be lawful for the Minister to require an officer to retire from the public service of the Federation at any time after he attains the age of forty-five years, subject to six months’ notice in writing of such requirement being given to the officer by the Minister.

(2) It shall be lawful for the Minister to require a female officer to retire from the public service of the Federation on marriage.”

The power to require an officer to retire under this section was formerly conferred on the Governor-General, and the word “Minister” (which means the Federal Minister charged with responsibility for pensions) was substituted by the Pensions (Amendment) Act, 1961, assented to on the 29th September, 1961.

The respondent was aged 48 in May, 1965, and it is not disputed that he is an officer whom the proper authority might require to retire under s. 9 of the Pensions Act. What is disputed is whether the Police Service Commission is the proper authority. The argument for the appellants is as follows. Under section I of the Constitution of the Federation, 1963, the Constitution prevails over any other law to the extent of any inconsistency between the two. Section 109 establishes the Police Service Commission of the Federation. Section 110(1) reads–

“Power to appoint persons to hold or act in offices in the Nigeria Police Force (including power to make appointments on promotion and transfer and to confirm appointments) and to dismiss and to exercise disciplinary control over persons holding or acting in such offices shall vest in the Police Service Commission of the Federation.”

Section 156 provides that all existing laws shall have effect with such modi-fications as may be necessary to bring the law into conformity with the Constitution. It is therefore submitted that section 9 of the Pensions Act has effect in relation to a police officer as if “Police Service Commission” were substituted for “Minister” and in relation to other officers as if “Public Service Commission” were substituted.

We observe that sections 1, 109, 110 and 156 of the Constitution of 1963 reproduce the substance of sections 1, 102 and 103 of the Constitution of the Federation, 1960 and s. 3 of the Nigeria (Constitution) Order in Council,1960. Mr. Ogundere agreed that if his submission is right s. 9 of the Pensions Act has had effect with the modification he suggests since the 1st October, 1960, and that the amendment which Parliament purported to make in 1961 was inconsistent with the constitution then in force and so void.

On the wording of s. 110(1) of the existing Constitution the question, whether the section has conferred on the Police Service Commission the power to require an officer who has attained the age of forty-five years to retire under section 9 of the Pensions Act, depends on whether the exercise of that power is properly regarded as included in “disciplinary control”.

The Appellants say it is; it appears from a circular letter to heads of departments dated 1952 that it was not so regarded during the time when the conditions of service of public officers were governed by the Colonial Regulations, but the appellants, whose good faith is not in question, are within their rights in refusing to treat the letter as binding on them, and in asking the Court to decide on the true meaning of section 110(1) of the Constitution. The respondent did not, as was submitted, concede during the correspondence that passed between him and the Commission that the power was a disciplinary one. What he did was to say that the Commission was invoking section 9 of the Pensions Act as a disciplinary measure and to protest that it had no power to do so.

It is perhaps easier to say whether any particular power does or does not come within the meaning of the expression “disciplinary control” than to offer a comprehensive definition of the expression, and we shall confine ourselves to considering on which side of the line section 9 of the Pensions Act falls, remarking only that as the meanings given to the word “discipline” in the Shorter Oxford English Dictionary include “the order maintained and observed among persons under control or command; a system of rules for conduct” and “correction, chastisement”, we think that the enforcement of rules is an element of disciplinary control.

Read by itself we do not regard section 9 of the Pensions Act as concerned with discipline at all. Subsection (1) has its counterpart in section 7(1), which enables an officer to retire on pension of his own volition on or after attaining the age of forty-five subject to giving six months’ notice if he is not yet fifty unless the Minister waives the giving of notice; he cannot be required to give reasons for wishing to retire. If there was an ordinary contract of service one would say that after the officer had attained the age of forty-five it was terminable by either party on six months’ notice, which seems more reasonable than to say that when an officer attains the age of forty-five he becomes subject to additional powers of disciplinary control. Section 9 (1) does not limit the grounds on which an officer may be required to retire, action under it is not the equivalent of dismissal and the power is not concerned with disciplinary control.

This view is reinforced by the whole pattern of the Pensions Act. Section 6 lays down that pensions shall not be granted as of right, and may be reduced or altogether withheld if it is established to the satisfaction of the Minister that the officer has been guilty of negligence, irregularity or misconduct, but section 153 of the Constitution is designed to protect the rights of an officer by providing that his power shall not be exercised without the approval of the Commission that exercises disciplinary control over the officer.

Section 7 of the Act sets out the circumstances in which a pension may be granted. The officer must have retired from the public service in the circumstances set out in one of the eleven paragraphs contained in the section; of these, paragraph (3) deals with retirement “on compulsory retirement under the provisions of section 9(1)”, paragraph (7) with retirement because of incapacity due to infirmity of body or mind, and paragraph (8) with retirement “in the case of removal on the ground of inefficiency as provided in the Act.” Thus compulsory re

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Other Citation: (1967) LCN/1488(SC)

Commissioner Of Police, Mid-western Nigeria V Layinka Akpata (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

This is an appeal by the prosecutor against a judgement of Ekeruche, J., setting aside a conviction on four counts as well as sentences imposed on the present respondent. Originally the respondent, who was a registrar in the High Court of Benin City and a person employed in the public service, was charged and tried in the magistrates court at Benin on four counts which are as follows:-

‘1ST COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City in the Benin Magisterial District, being a person employed in the Public Service to wit: Judicial Department, High Court, Benin City, stole the sum of £ 173-15s-0d, property of your employers and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28, vol.1, Laws of Western Nigeria, 1959.

2ND COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City, in the Benin Magisterial District, with intent to obstruct the course of justice, wilfully concealed court case file in charge No. B/4C/65 involving Elijah Okolo Chukwu and two others and thereby committed an offence punishable under section 111 (2) of the Criminal Code, cap. 28, vol. 1, Laws of Western Nigeria, 1959.

3RD COUNT: That you Layinka Akpata (m) between the 9th day of January, 1965, and 28th May,. 1966, at Benin City, in the Benin Magisterial District, knowing that exhibits G – G 155, H – H2, 30 – 31 C and S – SI would be required in a judicial proceeding to wit: Charge No. B/4C/65, Police versus Elijah Okolo Chukwu and two others wilfully destroyed the said exhibits with intent thereby to prevent them from being used in evidence in the said proceedings and thereby committed an offence punishable under section 107 of the Criminal Code, cap. 28, vol. 1; Laws of Western Nigeria, 1959.

4TH COUNT: That you Layinka Akpata between 9-1-65 and 28-5-66 being a person employed in the Public Service of Mid-Western Nigeria to wit: Registrar High Court, Benin City, stole case file No. B/4C/65-the State versus Elijah Okolo Chukwu and 2 others, property of the said Mid-Western Government and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28 of the Laws of the Western Provinces of Nigeria, 1959.’

The respondent was convicted on all the counts by the learned magistrate and sentenced to various terms of imprisonment. On an appeal to the High Court, the learned judge of appeal set aside the convictions and sentences and discharged the accused. The Commissioner of Police has appealed to this court against the acquittal.

The respondent at the material time was a registrar in the High Court of Benin and was in charge of exhibits in a case pending in that court. It would appear that he made use of the sum of £173-15s-0d which was an exhibit in the case and this formed the subject of the first count. He then hid the case file so that the case might not come up for trial and this formed the subject of the second and fourth counts. The third count charged the accussed/respondent with destroying the money the subject-matter of the first count.

It appears to us that the facts are not seriously in dispute. The accused/respondent gave no evidence before the learned magistrate. The evidence, which is not disputed, shows that when confronted the respondent admitted he had made use of the money to argument an amount given to him as an advance to purchase a car. Questioned about the suit file, the respondent was not able to produce it in the High Court, but left in the direction of the magistrates court to which he had been transferred some months earlier and about ten minutes later produced the suit file.

We propose to deal with each of these counts and the reasoning of the learned judge of appeal in his consideration of each.

On the first count the learned judge complained that the ownership of the money as laid in the charge was bad. He said that to say that the money was the property of the accused employers, who are not named in the charge, was bad; that it should have been stated that the money is the property of the Mid-Western Government and to say that the money is the special property of the Judicial Department is inept.

We feel unable to support the reasoning of the learned judge of appeal on this point. The charge as laid stated that the respondent stole the money of his employers and evidence was adduced, which was not controverted, that the respondent was in the employment of the Government of the Mid Western Group of Provinces, a name which the Government of the MidWest carried at the relevant time. We fail to see what other proof the learned judge required that the money was the property of the Government concerned. If there was any doubt about this, and indeed we do not see any room for doubt, the judge had powers under section 104 (a) (ii) of the Magistrates Courts Law to alter the findings of the learned magistrate as to the ownership of the money. The learned Senior State Counsel pointed out to us that no objection was raised at the trial as to the ownership of the money and referred us to the case of R. v. Elechi 3 F.S.C. 17 at p. 18, but in that case in dealing with the point as to the statement of ownership of property, the Federal Supreme Court observed as follows:-

‘Section 154 (I) of the Criminal Procedure Ordinance, Cap. 43, Laws of Nigeria, provides that where the property referred to is described with reasonable clearness it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property, to name the person to whom the property belongs.’

Clearly when special ownership of property is of the essence of a charge it is necessary that the particulars of the charge should show such type of ownership as is necessary to sustain the charge and Hibbert v. McKiernan [l948] 2 K.B. ISO to which the Senior State Counsel also referred will only apply in ordinary cases of stealing where no special property is required to be proved by the provisions of the section under which the charge is laid.

In the present case however, we are satisfied that the property involved was sufficiently and appropriately described and that the charge was properly laid and proved.

We next consider count 4 of the charge which the learned judge dubbed as a spurious count. He argued that it was inconceivable to say that the respondent stole the case file when in fact he hid it so as to prevent the case being listed before he could have time to replace the amount he made use of. This argument turns on the definition of stealing.

There is clear evidence that the file was taken away completely from its proper custody and was nowhere in the vicinity of the High Court. Also that on his transfer to the Magistrates Court from the High Court, the respondent in his handing over notes made no reference whatever to the existence of this file. Undoubtedly, the respondent expected to deprive his employers permanently, if possible, of the file. We cannot conceive of a clearer case of stealing.

Count 3 seems to us an alternative charge to count 1. It speaks of destroying the amount of £ 173-15s-0d, alleged stolen. We are convinced on the evidence before the learned magistrate that the money was not destroyed and the charge of ‘wilfully destroyed’ was not the proper charge. The charge from the evidence before the court should have been one of removing or concealing, and the words ‘wilfully removed’ should have been substituted as the evidence would have been in no way different in respect of it. Both the learned magistrate and the judge himself could have made the substitution as the respondent has not destroyed the money. We hereby substitute the words ‘wilfully removed’ for ‘wilfully destroyed’ in the charge. In regard to the second count, laid under section 111 (2) of the Criminal Code charging the respondent with wilfully concealing the court case file with intent to obstruct the course of justice, we agree with counsel for the respondent that the charge as laid was misconceived. Section 111(2) of the Criminal Code speaks of attempt to do any of the things described there and not of concealing property as shown in the count on which the respondent was tried.

It reads:-

‘111. (2) Any person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years.’

We cannot say that in this case the phrasing of the count is in accord with the section of the Code under which the respondent was charged. We therefore think he was rightly acquitted on this count by the learned judge, as the learned Senior State Counsel did not suggest to us that it was appropriate for us to amend or substitute in regard to this count.

We therefore allow the appeal of the prosecutor on counts 1, 3 and 4, and the verdicts of the learned magistrate on these counts are reinstated. Sentences passed by the learned magistrate are amended and are to read as follows:-

First count- 2 years I.H.L.

Third count- 6 months I.H.L. to run concurrently with count 1.

Fourth count- 2 years I.H.L. to run consecutively with counts and 3,

and these will be the sentences passed by the Court.

The respondent is to be arrested forthwith to carry out the sentences passed upon him.

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Other Citation: (1967) LCN/1370(SC)

Debesi Djukpan V Rhorhadjor Orovuyovbe And Another (1967)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

The appellant in this appeal was the plaintiff in an action to redeem land, which he claimed had been pledged to the defendants, in the Central Urhobo Grade B Court which was dismissed with £25 costs. He appealed first to the Chief Magistrate, Warri, and from him to Prest, J. in the Warri High Court but in each court his appeal was dismissed. The plaintiff’s claim as set out in his particulars was-

‘The plaintiff’s claim against the defendants jointly and severally is for the redemption of plaintiff’s late grandfather’s portion of land known and called “Edu Bush” situated by the second bridge along Iwrekan-Otu Jeremi Road in Jeremi clan which piece of land was pledged by the plaintiff’s late cousin Oginlbo on behalf of the “Porno” family to the defendants late father Orovuyovbe some 22 years ago for the sum of £5-15s-0d.

2. The plaintiff had on behalf of the “Porno” family approached the defendants on several occasions for the redemption of the said piece of land but this had been turned down whereupon the plaintiff now seeks through this court the redemption of the said piece of land. The value is £50:”

It was not in dispute that the defendants were in occupation of the land and had so been since 1942, but what was at issue was whether the defendants occupied it by virtue of a redeemable pledge or because they had bought the land outright from the plaintiff.

In this Court Dr. Odje for the appellant sought leave to argue a number of grounds of appeal but objection was taken to some of them by Mr. Ogbobine for the respondents on the ground that either they were never raised in either of the appeals to the courts below or at any rate they were not argued on appeal to the Warri High Court. Dr Odje conceded this but argued that this Court had a discretion to allow such grounds to be argued notwithstanding the failure to argue them in the courts below ff the grounds raised points of law and the justice of the case required it. He further submitted that the reason for the failure to argue these points in the courts below was a change of counsel for the appellant and that he had only been briefed before us. We agree with Dr. Odje that this Court has a discretion whether to allow grounds of appeal to be argued which had not been argued in the High Court, but in our view when this is the position the burden is on the appellant to satisfy us that there will be no injustice by allowing them to be argued here on the material before us. If there are special circumstances and they involve substantial points of law then as the Privy Council did in Abinabina v. Enyimadu 12 W.A.C.A. 171 leave may be granted or as in the Commissioner of Lands v. Arah 14 W.A.C.A. 510 where the new points sought to be raised went to the existence of the action then leave may be granted. The Judicial Committee of the Privy Council in the United Marketing Co. v. Kara [1963] 1 W.L.R. 523 has in our view helpfully set out the practice which it considers desirable in the following passage from Lord Hodson’s judgment at page 524-

‘Their Lordships are of the opinion that the appellants should not be allowed to take this point at this stage. In the first place, the point could have been met by evidence that if the claim had been made against the company under a subsisting policy the company would not rely on the breach of the condition or possibly by some other evidence. Their Lordships would not depart from their practice of refusing to allow a point not taken before to be argued unless satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, If fully investigated, would have supported the new plea: Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473., 480; and Archambault v. Archambault [1902] A.C. 575.

Even If the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below. In this case the appellants have relied in support of their submission that there was a breach of condition on two South African cases, Lewis Ltd. v. Norwich Union Fire Insurance Co. Ltd. (1916) S.A.L.R. App. D.509 and Sacks v. Western Assurance Co. (1907) Tr. H.C. 257 which on similar facts support their submission, but their Lordships are not prepared to say that the point is too plain for argument to be required upon ft.

The arguments and judgments in these two cases indicate that at any rate in the United States of America there are conflicting decisions on this topic, and no direct authority in this country was available so far as the researches of the appellants were able to show. Accordingly, their Lordships, would not, even if the question were a bare question of law, entertain the submission that the respondent’s claim is to be defeated by reason of his breach of a condition of his contract of Insurance with the Jubilee Co., and they would follow the guidance given by Lord Birkenhead, L.C. in North Staffordshire Rafhvay Co. v. Edge [1920] A.C. 254, 263, when he said, ‘The efficiency and the authority of Appeal, are Increased and strengthened by the opinions of learned judges who have considered these matters below. To acquiesce in such an attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest Importance without having received any assistance at all from the judges in the courts below.’ The Lord Chancellor went on to say that there might be very exceptional cases where new matters might be considered, but their Lordships do not regard this case as requiring such exceptional treatment.”

Moreover, there may, for Instance, be cases where subsequent decisions of this Court are contrary to what was decided in the High Court so that they were not known at the time in that court or there may be special circumstances where the lower court is bound by a decision, when the higher court is not, which would warrant leave being granted though even then in the latter instance it is desirable for the point to be taken at the earliest opportunity even If it has in fact then only to be reserved for argument in a later appellate court. Be these instances as they may, in this appeal the only ground for the exercise of our discretion was that counsel had changed and we did not consider that this alone was enough to discharge the burden on the appellant of satisfying us that leave should be granted, as otherwise any appellant just by changing his counsel could seek leave to argue points he had not put forward In the lower courts, and we accordingly refused leave to appeal on these grounds. Dr. Odje also sought leave to argue the question of the admissibility of a document because it was incorrectly stamped, but when we pointed out to him the provisions of section 23 of the Supreme Court Act, 1960, he agreed that he was precluded from so arguing so that leave to argue that ground of appeal was refused.

The first ground of appeal that then remained that was argued was that there was an error in law in holding that exhibit A., which reads as follows-

“AN AGREEMENT ENTERED BETWEEN OGINIBO OF  IWREKA OWNER AND OREVOYEVBE (sic) OF OTUJEREMI BUYER.

I, Oginibo of Iwreka wholly and solely sold this my land “Edu” to Orevoyevbe of Otu-Jeremi at the sum of £5-15s-0d

The buyer Orevoyevbe Is to occupy the land and can farm on  it, or plant crop it as he wish.

If the said Orevoyevbe die his sons and grand sons will use the land for ever. From today’s date this land “Edu” become personal property of Orevoyevbe. If any body come and interfere        in the land “Edu” I shall deal with the party seriously.

Oginibo His X Mk.

Orevoyevbe His X Mk.

W/M. Orevoyevbe His X Mk.

Orhordadje His X Mk.

Odje His X Mk.

Akpojluovbi His X Mk.

Ovie Ugo His X Mk.

Orevoyevbe pay £1-15s-0d 11th October, 1941. B/£4-0s-0d. £1 paid 8th January, 1942 B/£3. £3 paid 18th March, 1942.

W/M The whole debt is satisfied.

S. L . Orubu

C.N.C.”, could be treated as a receipt to evidence sale of the land in dispute after the document was held inadmissible by virtue of the Land Instruments Registration Law.

In our judgment the learned judge on appeal was quite correct to hold that this document was an instrument within the meaning of section 2 of the Land Instruments Registration Law as it was capable of having effect as an estate contract, but in our view section 16 of that Law did not, when it said “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”, preclude exhibit A being admitted as a receipt for the payment of money and as a memorandum evidencing a transaction under native Law and custom. Mr. Ogbobine sought to rely for its admissibility on the decision in Yaya v. Mogoga 12 W.A.C.A. 132 but that case does not in our view assist as it turned upon the application of the Land Registration (Agreements Exemption No. 2) Regulations 1944 which did not apply here. Dr. Odje for his part, however, sought to distinguish Ogunbambi v. Abowaba 13 W.A.C.A. 222, which Mr. Ogbobine craved in aid on this question of inadmissibility, on the ground that in that case both sides claimed title to the land whilst in the present appeal the dispute was whether it was a pledge or a sale.

We see no merit in Dr. Odje’s argument on this point and in our judgment the principle enunciated in Ogunbambi v. Abowaba that the purchase receipt was admissible as an acknowledgement of the payment of money applied equally here.

Counsel for the appellant next argued his ground of appeal that exhibit A was wrongly admitted in evidence as offending against the provisions of sections 3 and 6 of the Illiterates Protection Law (cap. 44 of the Laws of Western Nigeria). He submitted that exhibit A offended against section 3 as it did not show the address of the person preparing the document and he further argued that section 6 had not in any way been complied with by the writer indicating what, If any, fee he received. In fact we would note that it was the Illiterates Protection Ordinance that then applied and though the material wording Is the same it was to sections 3 and 8 of that Ordinance that counsel should have referred.

In support of his argument on section 3 counsel cited the decision of Charles J. in the High Court of Western Nigeria in Jiboso v. Obadina, 1962 W.N.L.R. 303 as establishing that non compliance with section 3 made the document voidable and thus unenforceable at the option of the illiterate, but if this is right, we do not consider it necessary to deter-mine now whether, when both sides are illiterates as was the case here, It would mean that either side could make it unenforceable so that in other words each illiterate was protected against the other, because in fact the writer of exhibit A put after his name “C.N.C.” meaning thereby Clerk of the Native Court which he in fact was at the time as was established by his own evidence, and in our view this was a sufficient compliance with the requirement of the section as to the address of the writer. The purpose of requiring the particulars of the address is to trace the writer, especially a professional letter writer, which was not in fact the position here, and this description was a sufficient address to enable him to be traced. In any case the legal position has been made clear By this court in S.C.O.A. Zaria v. Okon 4 F.S.C. 220 where this court at page 223 approved the judgment of Smith J. when he said:-

‘The document on the face of it does not comply with the section. The object of the Ordinance is to protect an illiterate person from possible fraud. Strict compliance therewith Is obligatory as regards, the writer of the document. If the document creates legal rights and the writer benefits thereunder, those benefits are only enforceable by the writer of the document N he complies strictly with the provisions of the Ordinance. If a document which does not comply with the provisions of the Ordinance creates legal rights between the illiterate and a third party then evidence may be called to prove what happened at the time the document was prepared by the writer and the parties signed it. But the writer himself cannot adduce evidence in his own favour to remedy the omission.”, and in respect of the document (exhibit A) which is in dispute there was in our view ample evidence before the trial court establishing that both parties asked the writer to prepare the document for them.

So far as noncompliance with section 6 is concerned we do not consider this section, unlike section 3, is so much for the protection of the illiterate as a penal provision in respect of the writer and non-compliance would not as such affect the admissibility of the Instrument; especially when as here, exhibit A was tendered by the plaintiff himself when cross-examining the first defendant so he could not in our view seek to show R was inadmissible when there was not an absolute statutory bar under the Illiterates Protection Ordinance (Now replaced by the Illiterate Protection Law), as there is for instance in certain circumstances under the Land Instruments Registration Law or as there is without good cause under section 23 of the Survey Act as was indicated by this court in Alase v. llu 1965 N.M.L.R. 66.

Dr. Odje conceded that the burden of proving the nature of the defendants possession of the land in dispute lay on the plaintiff/appellant and in our view this was rightly held by the lower courts not to have been discharged. We accordingly dismiss the appeal with 32 guineas costs.

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Other Citation: (1967) LCN/1487(SC)

L.A. Are V Adisa And Nigerian Housing Development Society Ltd (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant was the plaintiff and the respondents the defendants in an action tried before Ademola J. in the High Court, Ibadan, Western Nigeria. The plaintiffs writ is endorsed as follows:-

‘The plaintiff claims against the defendants-

(i) a declaration that the purported sale of the plaintiffs property situate lying and being at Yemetu opposite University College Hospital, Ibadan, by the second defendant to the first defendant, is illegal and void; and

(ii) an injunction restraining the first defendant from collecting rents from the said property or otherwise proceeding to take possession thereof.’

Pleadings were ordered and delivered. After describing the property concerned and stating that the plaintiff is the owner the Statement of Claim so far as is material to the arguments before us avers as follows:-

‘3. The plaintiff is a native in accordance with the Native Lands Acquisition Law and the second defendant is an alien under the provisions of the said law.

4 (1)-By a deed dated 28th January, 1961, and registered as No. 53 at page 53 in volume 380 of the Lands Registry in the office at Ibadan, the plaintiff purported to convey the said property to the second defendant for a term of 99 years subject to the proviso for redemption contained in the said deed.

5 (1)-In purported exercise of the power of sale conferred by the deed referred to in paragraph 4, the second defendant has sold the said property to the first defendant.

6 The plaintiff will contend at the trial of this action that the deed referred to in paragraph 4 above is void and of no effect because the transaction to which it purported to give effect was not duly approved in accordance with the provisions of the Native Lands Acquisition Law.’

The defendants delivered separate pleadings and both pleadings in substance admit that the plaintiff and the first defendant are ‘natives’ and that the second defendant is an ‘alien’ within the context of the Native Lands Acquisition Law, cap. 80; but both deny that the necessary approval was not obtained and put the plaintiff to the proof of this. At the trial the first defendant called no evidence at all. The only evidence called for the plaintiff was the production of the deed of conveyance vesting the property in him. This was admitted as exhibit A. For the second defendant the deed of mortgage of the property was produced as exhibit B and no further evidence was called. Counsel on all sides thereafter addressed the court. It was submitted on behalf of the plaintiff that the approval of the transaction in exhibit B by the Governor in accordance with section 3 (l) of the Native Lands Acquisition Law was not proved; that the transaction was invalid and that the purported sale of the property of the plaintiff by virtue thereof was also invalid. Both defendants contended that on the face of it the document exhibit B raised a presumption that the necessary approval was obtained and that this presumption was not, as it should have been, rebutted by the plaintiff. In a reserved judgement  Ademola J. dismissed the plaintiffs claim with costs holding in effect that on the pleadings and the evidence available to the court the plaintiff did not establish that the necessary approval was not obtained.

Before us on appeal two points were raised. The first was as to where the onus of proof lay and the second as to whether on the face of it the document exhibit B raised a presumption that the necessary approval had been obtained. It was conceded by learned counsel for the plaintiff that if the mortgage exhibit B was valid then the power of sale was rightly exercised.

With regard to the first point it is pertinent to refer to section 135 of the Evidence Act, cap. 62 (Laws of the Federation) which provides that ‘The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’ On the pleadings of the parties it is manifest that while the plaintiff avers that the necessary approval was not obtained the defendants aver that it was and put the plaintiff to the proof of his averment. If no evidence at all had been forthcoming from the plaintiff he would have run foul of section 135 of the Evidence Act and it would not have availed him that he produced the document exhibit A.

Counsel for the plaintiff submits that it was for the plaintiff to prove the exercise of the power of sale and that the burden shifts to the second defendant to prove that the necessary approval was obtained. The defendants resist these submissions and having regard to the pleadings and the provisions of section 135 of the Evidence Act it is obvious that the plaintiff would have to do more than had been submitted by his counsel.

The learned trial judge apparently took the view that it was for the plaintiff to prove that the defendants had not obtained the necessary approval.

Section 3 (1) of the Native Lands Acquisition Law provides as follows:-

‘Except as provided by any regulations or orders made pursuant to section 7, no alien shall acquire any interest or right in or over any land from a native unless the transaction under which the interest or right is acquired has been approved by the Governor in accordance with the provisions of this Law.’

The procedure for obtaining the necessary approval is set out in the Native Lands Acquisition (Approval of Transactions) Regulations as a subsidiary legislation to the Native Lands Acquisition Law, cap. 80 and those Regulations require inter alia that the transaction if approved shall be evidenced by an instrument duly registered in accordance with the provisions of the Land Instruments Registration Law within one year of the date of approval. The Third Schedule to the regulations also prescribes the form in which the Governors approval may be signified. Section 11 of the Land Instruments Registration Law provides as follows:-

‘No instrument requiring the consent of the Governor or of any public officer to the validity thereof shall be registered unless such consent be endorsed thereon or the registrar is otherwise satisfied that such consent has been given. ‘

The document exhibit B apart from being duly registered in accordance with the Land Instruments Registration Law has attached to it a letter addressed to the second defendant which reads in part as follows:-

No. L.5868/5

Ministry of Lands and Housing

(Lands Division),

Ibadan,

25th January, 1961

Sir/Gentlemen,

Referring to your letter No. 0.685 dated 3rd January, 1961. I have to inform you that subject to the conditions annexed hereto the Governor has approved the proposed transaction.

If the transaction is not evidenced by an instrument duly presented for registration in accordance with the provisions of the Land Registration Ordinance, Chapter 108, within one year from the date hereof this approval shall cease and be void.

This approval shall not cure any defect in any transaction (or in any subsequent instrument) or confer upon it any validity which it would not otherwise have had.

I am, Sir/Gentlemen,

Your obedient servant,

O. ADETIBA,

for Permanent Secretary,

(Lands Division).’

The letter was expressed to be signed by one ‘O. Adetiba’ on behalf of the permanent secretary, i.e. permanent secretary to the Minister of Lands.

Counsel for the plaintiff agrees that the powers of approval under section 3 of the Native Lands Acquisition Law had been delegated by the Governor to the Minister of Lands see section 35 (1) of the Interpretation Law, cap. 51, section 2 of the Delegation of Governors Power Notice and Item 13 (1) of the Schedule to that Notice); he also concedes that not only the permanent secretary but also any other officer in the ministry is entitled to signify an approval on behalf of the minister, but he contends that as the letter attached to exhibit B was signed for and on behalf of the permanent secretary and not on behalf of the minister, it was invalid as a signification of the approval of the Governor under section 3 of the Native Lands Acquisition Law.

The registration of exhibit B under the Land Instruments Registration Law is agreed by all parties and as this might not be effected ‘unless such consent be endorsed thereon or the registrar is otherwise satisfied that such consent has been given’ there must arise a presumption in favour of the approval having been obtained though not that it was otherwise sufficiently in compliance with the statutory requirements. Section 50 (1) of the Interpretation Law, cap. 51 provides as follows:-

‘When any power is given to the Governor to make or give any order, regulation, declaration or appointment or any authorisation, exemption, notice, direction, approval, permission, consent, or other subsidiary legislation, it shall be sufficient, unless it is otherwise expressed, for the same to be signified under the hand of the Deputy Governor or of such public officer as the Governor may appoint for the purpose.’

We are of the view that as submitted by counsel for the defendants and o

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Other Citation: (1967) LCN/1485(SC)

Lagos City Council (Trading Under The Name Of Lagos City Transport) V. S. A. J. Ogunbiyi (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

The defendant/appellant runs transport service in Lagos and its environs, and it is not in dispute that the plaintiff/respondent on the 12th August, 1965 travelled in one of its buses along Ikorodu Road from Lagos. A lady was the conductress in charge of the bus and the plain-tiff/respondent paid his fare of 8d. by tendering Is. to the conductress who said she would give the change later. The plaintiff/respondent got to his destination and demanded the change of 4d.; he was given a sum of Id. and an argument ensued. The conductress pressed the bell for the bus, which was then at a standstill, to move.

The plaintiff/respondent asked her to stop the bus as he must get down; he returned the Id. to the conductress who then pressed the bell and the bus stopped. It would appear that before the plain-tiff/respondent actually alighted from the bus the conductress pressed the bell and the bus moved. The plaintiff/respondent fell down, his two legs were crushed and he had to be carried to the hospital. His right leg was amputated above the knee and the left leg which was saved, according to the surgeon, may have to be amputated at a future date.For the present it would continue to cause him constant pain. In an action for negligence brought by the plaintiff/respondent the learned judge in the High Court of Ikeja awarded him damages of £15,741 and 250 guineas costs.

This appeal is against both the decision and the amount awarded as dam-ages on the ground (1) that as the action was not commenced “within three months next after the act complained of’ the defence or plea under section 2 of the Public Officers Protection Act should have succeeded and (2) that damages awarded in any case was excessive.

On the first ground it was argued that the Lagos City Council being a corporate body and running transport service for profit by virtue of sections 9(d), 92 & 142 of the Lagos Local Government Act, Cap. 93, its officers can claim the protection of the Public Officers Protection Act. It was not seriously contested that the officers of the Lagos City Council are not en-titled to the protection of the Act but what has come up for decision is whether the protection which the Act affords can be claimed where the act of the defendant was malicious.

There was ample evidence before the learned trial judge, which he accepted, that there was exchange of words in the bus and the conductress became abusive, violent and intolerant to the plaintiff/respondent and that her action was deliberate when she pressed the bell for the bus to move on, knowing well that the plaintiff/respondent had not fully alighted from the bus. There can be no doubt that the evidence before the learned trial judge, if accepted, provides ample grounds for coming to the conclusion that the action of the conductress was malicious.

It was argued that to rely on the protection of the Act, one who claims the protection must have acted without malice. In other words if the acts are done maliciously the Act will not afford protection. In the case Newell v. Starkie (1920) P C. 89 L. J. R. 1, where a plea of malice was considered as affecting the protection of the English Act, Lord Finlay at page 6 of the report said:-

“The second observation which I have to make is that the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.”

We are in agreement with the views of the learned judge that the evidence before the court provides ample justification that the conductress had acted maliciously and her actions had debarred her from the protection of the Act.

Learned counsel for the appellants, however, submitted that as malice was not specifically pleaded by the plaintiff/respondent the learned judge was wrong to have inferred it from the evidence before the court. We do not see any substance in this submission since it was clear from paragraph 7 of the statement of claim that the plaintiff had alleged that the conductress acted maliciously. In fact, apart from the general traverse there was no denial of this paragraph in the statement of defence. This ground of appeal therefore fails.

The only other ground of appeal argued before us was on the quantum of damages awarded. In this connection an item of £500 was awarded by the learned trial judge for loss of expectation of life. Counsel for the appellant argued that there was no medical evidence on this point and the judge was in error in making this award without such evidence. In his judgment, the learned judge in making his award of damages said as follows:-

“I consider the plaintiff’s condition to be very serious and pitiable. I hereby award the plaintiff damages as follows:

(a) £241 special damages; (b) £500 for loss of expectation of life and (c) £15,000 as general damages, of which, in my estimation, £5,000 should be attributable to his being conscious of his present unfortunate condition and its attendant handicaps to him for the rest of his life.”

With respect to the learned judge we do not see how he came to award the £500 under item (b) since this was never made a separate item of claim in the writ, in the particulars of claim made by the plaintiff nor was it made a claim in his statement of claim. We are of the view that the award under this item must be disallowed.

We now come to the award of £15,000 as general damages which the learned judge put as item (c) in his judgment aforesaid. Counsel for the appellant has argued that the amount awarded as damages under this head is excessive and unreasonable and that this Court ought to interfere. We do not wish to disguise the fact that the question of quantum of damages is always a difficult problem that the law or the judge has to face. One cannot minimise the extremely difficult task of a judge when he has to assess damages in these cases; and this Court, as a court of appeal is always reluctant to interfere with awards made by judges unless the award made is excessively high or unreasonably low. All the same there are no special criteria whereby the appeal court is to judge what is excessively high or unreasonably low. All awards however should include compensation for loss of earnings, pain and suffering, and the loss of amenities of life. It is therefore part of our duty to examine the injuries suffered by the plaintiff/respondent in this case. These are what Mr. Ogunyemi, the surgeon, had to say about the condition of the plaintiff/respondent when admitted into the hospital on 12 August, 1965:-

“I examined him and I found that he was severely shocked. Both his lower limbs were badly crushed-the right more crushed than the left. The extensive lacerations were such that on the right side the muscles of the right leg were torn thread-bare, exposing the two bones of the lower right leg converting them into open fractures. There was a complete degloving of the left foot involving the ankle joint”.

The surgeon then proceeded to the treatment he gave the patient. He said:-

“His shock was energetically handled by blood transfusion, until he recovered. A classical above the knee amputation was performed on the right leg as attempts to save the leg were abortive. The degloved left foot and ankle were sutured with relaxing incision and later on a split skin graft was performed on that foot. He was given drugs and two pints of blood”.

The surgeon continued as follows:-

“During the first few days the plaintiff was very uncomfortable and he was in the hospital for about 4 months. He was discharged on 15 December, 1965 with above-knee artificial limb which he paid for. He was reporting to the out-patient clinic until 23 February, 1966 when his disability was assessed at 80% total”and the prognosis by the surgeon which must cause one some concern are:-

“His left foot is as good as useless and he would be having constant excruciating pain. It may have to be amputated later”.

The learned judge in his judgment considered the evidence in the case and reviewed many authorities in his consideration of damages. He then continued:-

“It is clear to me that the attitude of the courts has changed radically from the award of what were formerly regarded as standard sums of higher figures because they now talk in terms of substantial damages as in West v. Shephard (supra) and a large sum for compensation as in Oliver v. Ashman (supra) especially in cases where the victims of personal injuries are bound to be conscious of the losses they suffer and are liable to be subject to continued suffering etc…….”

After an exhaustive examination of the recent trend of the courts in awarding damages in these cases, we have come to the conclusion that the learned judge has given far too high a figure as general damages. We realise the fact that the plaintiff/respondent has suffered a full disability of one leg and a probable full disability of the other. He has lost his employment there-by and at the age of 63 (he was 59 at the time of his misfortune) he is unlikely to get any other employment with his disabilities. But with his personal life thus affected the plaintiff/respondent is not altogether useless and not unable to rehabilitate himself and we should not be unduly pessimistic about that although he is greatly handicapped. We are in this respect not unmindful of the views expressed by the learned trial judge when in his judgment he said as follows:-

“In this case, the plaintiff was a well-developed man of about 59 years of age at the time of his misfortune, and, from the evidence before me which I accept, and as I can judge from his appearance even in his handicapped state, there is no doubt that he has lived a full life, and well too. He was even fairly well-to-do, being able to own a car of his own, which shows that he was then able to earn additional income to his employment wages. Now, suddenly, and for all times till his death, he becomes cut off from the life he used to live and enjoy, and he is saddled with the prospect of constant pain and the possible loss of his other leg which even now is virtually useless to him according to the doctor’s evidence which I accept”.

After the most anxious consideration, we feel that it is the duty of this Court to interfere and we would allow the appeal by reducing the general damages to £5,000.

We accordingly order as follows:-

(1) that the appeal against the decision of the Ikeja High Court dated 23 January, 1967 in Suit 1K/73/66 with respect to liability be dismissed.

(2) that the appeal against the amount of damages awarded be allowed and that the order of the said High Court in that respect including the order for costs be and is hereby set aside;

(3) that the plaintiff be and is hereby awarded £241 as special dam-ages and £5,000 as general damages with costs assessed at 200 guineas, and this will be the judgment of the Court; and

(4) that the defendant/appellant be and is hereby awarded costs of this appeal assessed at 10 guineas.

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Other Citation: (1967) LCN/1369(SC)