Iboko & Ors. V The Commissioner Of Police (1965)
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This appeal was dismissed on the 17th June at the hearing for reasons which will now be given. The appellants were convicted by the magistrate at Abakaliki of certain offences, and appealed to the High Court, and have now appealed to the Supreme Court. Two of their grounds of appeal to the High Court are that the magistrate’s judgment is:-
Altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.” Phil-Ebosie, J. says that, in light of Adi v. The Queen, 15 WA. C.A. 6, those are not proper grounds of appeal; that in criminal cases the proper ground is that- “the verdict is unwarranted, unreasonable and cannot be supported having regard to the evidence”:- and not ‘having regard to the weight of the evidence’, the reason being that in a criminal appeal the point is not the preponderance of evidence on one side which outweighs the evidence on the other side; and that this view was held in Aladesuru v. The Queen  A.C. 49. In regard to the argument that the grounds as framed are authorised by rule 9 in Order 55 of the High Court Rules (E.R.), the learned judge held that the W.A.C.A. decision should prevail, and he called the attention of the Rules Committee to this error which offended against well established principles of the law.
The appellants object that the learned judge erred in his view that the WA.C.A. decision prevailed over rule 9 in Order 55, which authorises this ground of appeal, namely:-
“(h) That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”
Their learned counsel agrees that s.22 (1) (d) of the Interpretation Ordinance (cap. 89 of the 1958 Laws of the Federation etc.) applies; it provides that:-
“(d) no order, regulation or rule of court shall be inconsistent with the provisions of any Ordinance or Law in force in any part of Nigeria to which the Order, regulation or rule of court applies.”
Thus the first question is whether the provision of the rule is inconsistent with the High Court Law (E.R.), under which the rules were made. That Law provides in s.99 (1) for the making of rules regulating sundry matters, one of which is:
“(i) the form and procedure relating to civil and criminal appeals to the Court.” Provisions in the rules for a memorandum of the grounds of appeal is a matter of procedure, but the grounds which are authorised by the rules must keep within the grounds on which the court may act; and this sends one to section 38(1) of the High Court Law, which provides that
“On an appeal from conviction in a Magistrate’s Court, the Court may:
(a) Maintain the conviction and dismiss the appeal; or
(b) allow the appeal and set the conviction aside if it appears to the Court that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable, or that the conviction should be set aside on the ground of a wrong decision on any question of law, or on the ground that there was a substantial miscarriage of Justice:
Provided that the Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred;” (The rest is irrelevant here).
Thus, in so far as the appeal relates to the facts, the ground which may be advanced is that “having regard to the evidence adduced” the conviction was “unreasonable”. The rule in question has the words “unwarranted, unreasonable and cannot be supported having regard to the weight of evidence”, which go beyond the wording of section 38(1)(b) of the High Court Law, and that is a flaw in the rule.
The flaw is one of substance: the rule assimilates a criminal appeal on the facts to a civil appeal, and authorises the appellant to argue on the weight of the evidence and invite the High Court to set aside the conviction on that line of approach: but that is contrary to s.38(1)(b), which limits the court to setting aside the conviction on the ground that it is unreasonable, having regard to the evidence adduced, and requires a different line of argument and approach in a criminal appeal.
It will be useful to cite the provision in s.26(1) of the Federal Supreme Court Act, 1960, on appeals from convictions in the High Court; it reads: “The Supreme Court on any appeal against conviction under this Part shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgement of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case, subject to the provisions of sub section (3) of this section and section 27 dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
That was modeled on section 11(1) of the WA.C.A. Ordinance (cap. 229 in the 1948 Laws), which was modeled on s.4 (1) of the English Criminal Appeal Act, 1907; and the proper approach can be seen in the cases cited in Archbold (1962), para. 934. One of them is Aladesuru v. R.  A.C. 49. an appeal from Nigeria, in which the Privy Council held as follows (as given in the head note to the report):
“Held, that in order to succeed an appellant must show, in the words of the statute, that the verdict is ‘unreasonable or cannot be supported having regard to the evidence.’ It is not a sufficient ground of appeal to allege that ‘the verdict is against the weight of evidence’; that phrase is inaccurate and cannot properly be substituted for the words of the statute. The Ordinance gave no appeal on such ground, and the Court of Appeal was entitled to require strict observance of its provisions, but that did not mean that in a proper case the Court of Appeal would not give leave to appeal or review the evidence if a prima facie case was shown that the verdict appealed from was one which no reasonable tribunal could have arrived at.”
It seems to us that the legislature aimed in s.38 (1) (b) of the High Court Law in effect to assimilate a criminal appeal on the facts from a magistrate to a criminal appeal from a High Court conviction, although the wording of the WA.C.A. Ordinance was not taken over in full, as with advantage it might have been. There is in our opinion an inconsistency of substance between s.38 (1) (b) of the High Court Law and rule 9(h) in Order 55 of the High Court Rules: the really peccant words are “the weight of viz. the evidence, and the provision in the rule is, to that extent at any rate, ultra vires and should not be had regard to. The ground of appeal on the facts should follow the wording of the section.
It was for the sake of having the opinion of the Supreme Court on grounds of appeal from magistrates in criminal cases that the High Court gave leave to appeal, and, apart from that, counsel for the appellants did not wish to address us. We have given our opinion, which the learned Chief Justice of the Eastern Region might wish to see, and a copy of this judgement should be sent to him.
We should like to suggest that the High Court judges might, seeing that it is a pardonable mistake to frame a ground of appeal as provided in a rule of court, delete the words “weight of”, and invite counsel to argue an appeal from conviction on the facts with the right approach. For the right approach we would refer to The Queen v. Omisade and others, 1964 N.M.L.R. p. 67, at p.78, where the Supreme Court said as follows:
“It must be borne in mind that this is an Appeal Court and we are not retrying the case. In this connection we will refer to the judgment of the Court of Criminal Appeal in R. v. Arthur Fred Hancox 8 Cr. App. R. 193 at 197. It is clearly not the fiction of this Court to retry a criminal case on appeal before us; if there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand.
The law was aptly put by Lord Tucker in the Judicial Committee of the Privy Council in the judgment of the Board in the case of R. v. Aladesuru and Others 39 Cr. App. R. 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said:-
‘It will be observed that the language of the West African Court of Appeal Ordinance follows that of the English Criminal Appeal Act, 1907, under which it has long been established that the appeal is not by way of a re-hearing as in civil appeals from a judge sitting alone, but is a limited appeal which precludes the Court from reviewing the evidence and making its own valuation thereof.’
We have to add that in the present case the High Court did consider some other grounds of appeal on the facts, and in effect dismissed the appeal on the facts; so, no more need be said. For the above reasons the appeal to the Supreme Court was dismissed.
Other Citation: (1965) LCN/1237(SC)