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17TH .APRIL. 1959.

F.S.C. 252/1958

3PLR/1959/5 (SC)




MYLES JOHN ABBOTT. F.J. (Presided and Read the Judgment of the Court)










PRACTICE AND PROCEDURE – APPEAL – Criminal appeal – Re-trial- When to be ordered -Applicable prin­ciples.

CRIMINAL LAW AND PROCEDURE – Appeal – Re-trial, order of – Prin­ciples applicable.

CRIMINAL LAW AND PROCEDURE – Inspection of locus in quo – Ir­regularity – Effect.

PRACTICE AND PROCEDURE – COURT- Powers of Federal Supreme Court to order re-trial – Section 11(2), Federal Supreme Court (Appeals) Ordinance.


MURDER WEAPON: Matchet and Gunshots



Mr. Agbaje, A.M.F. (with Mr. Akinjide, R.O.A., Mr. Adisa, E.A., Mr. Aiyeola, N.O.,

Mr. Olowofoyeku, B.O. -for the Appellants

Mr. Lloyd, R.D., Acting D.P.P. -for the Respondent.



ABBOTT, F.J. (Delivering the Judgment of the Court):

The appellants in this case appeal to this Court from the decision of the High Court of the Western Region, holden at Ibadan, convicting each of them of the murder of one Bello Aiki.

For the purpose of this judgment, it is not necessary to go further into the facts than to say that the appellants were all found by the learned trial Judge to have been members of a gang of rioters engaged in attacking per­sons and damaging buildings at a village called Iddo near Ibadan, at the end of March last year. In the course of the activities of the gang, a man named Bello Aiki was murdered, the cause of his death being matchet wounds which fractured his skull, and gunshot wounds in the chest. Eye-witnesses identified each of the appellants as having taken part in the attack on and kil­ling of the deceased.

At the close of the evidence on both sides, and prior to the final addres­ses of counsel, the learned trial Judge, apparently of his own motion, de­cided to inspect the scene of the crime, and this inspection was carried out in the presence of counsel for both sides and the five appellants. Either at the time or thereafter, on the same day, so far as can be gathered from the re­cord, the learned trial Judge made notes of what happened at the inspection, including details of demonstrations by the eye-witnesses of the positions which they occupied in the village immediately before, and outside the vil­lage at the time of the crime itself.

In his judgment, the learned trial Judge, after detailing the evidence for the prosecution and the defence, pointed out, quite correctly, that “the background of this case is political” and he continues:­

I am conscious therefore of the necessity to exercise extreme caution in accepting the testimony of the eye-witnesses. I visited the locus in quo and am thus enabled to follow and appreciate the evidence better as well as assess the credibility of the witnesses. The note which 1 wrote on the inspection of the scene of crime forms a portion of these proceedings, it is unnecessary therefore to repeat its contents. I am satisfied that each of Akangbe Ogun­rinola, 5th prosecution witness, and Amodu Adigun, 4th witness had a good opportunity of seeing the events to which he deposed in his evidence.

Then, after carefully considering the case against each appellant and his defence thereto, the learned trial Judge convicted each of the appellants as charged. In fairness to the learned trial Judge, it must be mentioned that, al­though the inspection took place before he began his final address, counsel who appeared for the appellant in the Court below made no application, as he might well have done, for the recall of the witnesses who had made state­ments and given demonstrations at the inspection, so that he could cross­examine them on what they had respectively said and shown.

Several grounds of appeal were filed, but none was argued, for reasons which shortly appear. It is material, however, to set out here the most impor­tant of these grounds. It reads as follows:­

The learned trial Judge erred in law in making the notes taken on the inspection of the locus in quo to form part of the proceed­ings and allowing his mind to be materially and substantially (af­fected) by them in coming to a decision in the case such notes having contained unsworn testimonies for the prosecution and no opportunity given for the defence either to cross examine them or to give evidence in rebuttal.

When the appeal was called on, Mr. Lloyd, Acting Director of Public Prosecutions, announced that, in view of the decision of this Court in R. v. Arutu 4 F.S.C. 70 and of the facts of the present case, he could not support the conviction. He pointed out, very fairly and properly, that the conduct of the inspection was full of irregularities, in that the learned trial Judge did not comply either with section 76 of the Evidence Ordinance, or with the direc­tions as to the correct procedure to be adopted at a view given by the West African Court of Appeal in R. v. Togbe 12 WACA 184. Mr. Lloyd went on to concede, by reference to the passage in the judgment which we have quoted above, that there was no doubt that the learned trial Judge’s mind had been influenced by what occurred at the view.

Mr. Lloyd then submitted that this Court should, in exercise of the pow­ers conferred upon it by section 11(2) of the Federal Supreme Court (Appe­als) Ordinance order a re-trial: it could not be said that the trial was a nullity, nor that there had not been a substantial miscarriage of justice enabling the invocation of the proviso to section 11(1) of the same Ordinance.

There were here, said Mr. Lloyd, convictions based in part on evidence which had been wrongly admitted, and, in such a case, he urged, if there were, apart from such evidence, evidence sufficiently strong to warrant the conviction of the appellants, a retrial might be ordered. In support of his submission, Mr. Lloyd cited the following cases:­

  1. v. Kissell (1916) Reports of New South Wales
  2. v. Eynes 23 Commonwealth Law Reports 1
  3. v. Shabchook 39 Canadian Criminal cases 386
  4. v. Ivall 94 Canadian Criminal cases 388
  5. v. Thomas [1957] SCNLR 310.
  6. v. Motayo 13 WACA 4.

Mr. Agbaje, for the appellants submitted that a retrial should not be or­dered, because (a) the learned trial Judge, having of his own motion, de­cided to view the locus in quo after all the evidence had been given, must have been in doubt as to the credibility of the eye-witnesses, and therefore as to the guilt of the appellants, (b) if the evidence wrongly admitted is excluded, all that is left is evidence whose reliability was doubted by the Judge, the benefit of which doubt should be given to the appellants. In re­gard to Kissell’s case (supra), counsel pointed out that the inadmissible evi­dence there was not, as it is here, vital to the issue before the Court: and that, if the Judge in this case had been able to make up his mind without the view, he would not have had the view: and while, in Eynes’ case (supra), nobody could say how far the jury’s mind had been affected by the inadmissible evi­dence, the effect on the Judge’s mind in the present case is clear. Appellants’ counsel next submitted that Thomas’ case is distinguishable from the present – certainly it is true to say that the evidence wrongly admitted here is of a more vital nature than that in Thomas’ case. Mr. Agbaje finally referred to the decision of this Court in R. v. Arutu given on the 8th April, 1959, and re­ferred to earlier in this judgment.

In Arutu’s case there were exactly the same irregularities in the conduct of the inspection of the locus in quo, and this Court allowed the appeal in that case, and discharged the appellant.

It is important to note that the learned trial Judge in the present case, used in his judgments, in dealing with the inspection, almost the same lan­guage (certainly to the same effect) as he did in Arutu’s case which he also tried), and this Court held, in that case, that it was by no means certain that, without the demonstrations at the inspection, the Judge would have ac­cepted, as evidence convincing enough to convict the appellant, the evi­dence of the two eye-witnesses who gave the demonstrations. In that case, however, this Court was not asked to exercise its power to order a re-trial.

We have considered the cases cited by Mr. Lloyd, but have been unable to extract from them any guiding principles. We have therefore (and as this is one of the first cases in which the exercise of the power to order a retrial has been argued in this court) endeavoured to formulate the principles on which this Court should act in considering the exercise of that power. In for­mulating these principles we do not regard ourselves as deciding any ques­tion of law, or as doing more than to lay down the lines on which we propose to exercise a discretionary power. It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional princi­ples, or to modify those we have formulated in this judgment. We wish to make it clear that the Court will be free to do this without infringing the doc­trine of judicial precedent.

We are of opinion that, before deciding to order a retrial, this Court must be satisfied (a) that there has been an error in law (including the obser­vance of the law of evidence) or an irregularity in procedure of such a charac­ter that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of Justice, and to invoke the proviso to section 11(1) of the Ordinance; (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a sub­stantial case against the appellant; (c) that there are no such special cir­cumstances as would render it oppressive to put the appellant on trial a sec­ond time; (d) that the offence or offences of which the appellant was con­victed, or the consequences to the appellant or any other person of the con­viction or acquittal of the appellant, are not merely trivial; and (e) that to re­fuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

Applying those principles to the present case, and after the most anxi­ous consideration, we have come to the conclusion that it would not be right to order the retrial of the five appellants.

It follows, therefore, (Mr. Lloyd having, quite rightly, declined to sup­port the convictions) that these appeals must be allowed. The conviction of each appellant is quashed and his sentence is set aside, and we direct that a judgment and verdict of acquittal be entered in respect of each.

Appeal allowed

Convictions quashed

Note: The Federal Supreme Court (Appeals) Ordinance is now superseded by the Federal Supreme Court Ordinance, 1960


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