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28TH JUNE, 1957.

F.S.C. 69/1957

3PLR/1957/13 (SC)



OLUMUYIWA JIBOWU, AG. F.C.J. (Presided and Read the Judgment, of the Court)











A.M.F. Agbaje -for Appellants.

B.J. Walker, Crown Counsel -for Respondent.



CRIMINAL LAW AND PROCEDURE:- Criminal procedure – Irregularity – Visit to locus in quo in absence of accused – Whether must in all cases lead to quashing of conviction – Relevant considerations

PRACTICE AND PROCEDURE – APPEAL:- Criminal conviction – Application to set same aside by appellate court on ground of irregularity – What the court must be satisfied on




JIBOWU, AG. F.C.J. (Delivering the Judgment of the Court):

The appel­lants were convicted on the 26th September, 1956, of taking part in a riot at Oja Oba in Oshogbo on the 6th September, 1956, contra section 71 of the Criminal Code by the Magistrate, Ife, in the Western Region of Nigeria.


Their appeals to the High Court of the Western Region were heard and dismissed on the 3rd January, 1957 by Stuart, J., sitting at the High Court of Ibadan. From these dismissals the appellants appealed to this court and their appeals dismissed on the 14th June, 1957. We now give reasons for our deci­sion.


The only ground of appeal put forward reads:

“The proceedings at the trial Court are irregular in that the Court visited the locus in quo in the absence of the accused persons.”


In support of this ground Mr Agbaje, leading Counsel for the appellants referred to section 207 (2) of the Criminal Procedure Ordinance, which pro­vides that an accused person shall be present at the view when a Court views a locus in quo in connection with a case in Court, and submitted that it was obligatory on any Court inspecting a place connected with a case to see to it that the accused person was present. It is indisputable that the Magistrate who heard this case at Ilesha adjourned the case to enable the prosecution to collect their witness and then proceeded to view the locus at Oshogbo in the absence of the 125 accused persons who were connected with the case. He made a record of his inspection which reads:-


“Court rose at about 11 a.m. for the scene and returned at about 1 p.m. Inspected the Local Government Police Station along the Catholic Mission Street and saw an Opel Caravan Car No. 00.8921 badly damaged in the premises of the Station. Also saw strewn on the ground papers torn from Police Records. In­side the Office I saw damaged telephone, two damaged doors and some windows also saw a damaged motor cycle – Stones were strewn about the premises. Also inspected damage done to the window pane and notice board of the adjoining Education Of­fice. The Oba’s Palace is just behind and almost adjacent to the Police Station. Shown windows of the Palace that were damaged and I saw a big stone on a chair in the house. Almost opposite the Police Station is the Council Hall. I inspected the windows that were damaged there. Oja-Oba market appears to be within the premises of the Council Hall but on the right side of it. From here I was taken to the new market at Isale-Oshun about 1h mile away, it is a by-street with no market stalls. Most of the damages done to window panes of buildings in the vicinity of Oja-Oba were in the process of being repaired during my inspection.

The Assistant Superintendent Mr Emeleogu, the Pro­secutor Sub-Inspector Omoregbe, the two Counsel for Defence in all the series of cases connected with the riot Messrs Olagbaju and Omisade were present throughout. (This note of inspection is not only for Charge No. 10/16170/56 but also for Charge Nos. 10/1618C/56,10/1619C/56,10/1620C/56 and 10/16210/56; that is, all the cases in respect of the riot). The inspection is merely for the Court to familiarise itself with the scene and the relative pos­ition of one building to another, and also the extent of damage done to things that could not be removed to the Court.”


We are clearly of the opinion that it was irregular for the Magistrate to inspect the scene of the crime in this case in the absence of the accused per­sons although Counsel for the accused persons were present and although it might be difficult to convey 125 accused persons to view the locus.


Mr Agbaje submitted that the irregularity was of such a nature as to jus­tify the convictions of the appellants being quashed. He cited the case of one Ayo Oshunremi, who was connected with the series of riots which took place at Oshogbo at the time in question, whose conviction was quashed on appeal by the Honourable the Chief Justice of the Western Region. See Appeal No. 1/36 CA/56 heard on the 23rd January, 1957. He cited R. v. Antia WACA (Cyclostyled) Reports Oct. 1949 p.11, also Alli Adekunle and 2 Others, In Re Stanley Bazuaye v. Inspector-General of Police 1955-56 WRNLR 16, and also R. v. Oyefolu 13 WACA 186.


The proper test to be applied in a case like the present one is to be found in the judgment of Verity, C.J. in R. v. Oyefolu cited above where he said:

“But before we can be satisfied that the conviction should be quashed in the present case, it is not only necessary that we should be satisfied that there had been a grave irregularity, but that this irregularity might amount to a substantial miscarriage of justice.”


This test is in accord with the proviso to section 11(1) of the West Afri­can Court of Appeal Ordinance, now section 11(1) of the Federal Supreme Court (Appeals) Ordinance and with section 4 of the Criminal Appeal Act of 1907.


It is clear, therefore, that it is not for every irregularity in a trial that the conviction registered in the case will be quashed. It is necessary for the Court to consider whether the irregularity in a particular case caused a miscarriage of Justice.


It is only the Order made in Ayo Oshunremi v. Inspector-General of Police (Unreported), that was brought to our notice and we had not the op­portunity of seeing the judgment of the learned Chief Justice of the Western Region in the case. If his reason for quashing the conviction was simply be­cause section 207(2) of the Criminal Procedure Ordinance made it obligatory on the Court to see that an accused was present at a view of the locus in quo as appears from the Order, then, with respect, he had applied the wrong test. It is however, to be observed that he applied the right test in Alli Adekunle and 2 Others In Re Stanley Bazuaye v. Inspector-General of Police, referred to above.


In this case it was necessary for us to examine the Notes of Inspection made by the Magistrate in question to see if a miscarriage of justice had ac­tually resulted from his viewing the place in the absence of the accused per­sons. In the case of R. v. Oyefolu, it was clear that a statement was made at the locus in quo in the absence of the accused; that case is therefore distin­guishable from this case where no statement was taken and the Magistrate recorded: “The inspection is merely for the Court to familiarise itself with the scene and the relative position of one building to another, and also the extent of the damage done to things that could not be removed, to the Court”. It has not been suggested that the Inspection Notes are incorrect in any par­ticular nor had anything been done or said at the inspection to connect the appellants with the commission of the offences charged.


In our view, it would be ridiculous to suggest that the mere fact that the Magistrate saw the place where the riots had taken place and the damage done could have led to any miscarriage of justice. The inspection could only help the Magistrate to understand and follow the evidence given on both sides to enable him to arrive at a right and just decision.


The learned Magistrate heard evidence on both sides on which he found as a fact that there had been a riot in which the appellants took part. His de­cision as to who took part in the riot was not in any way influenced by his in­spection of the place where the riot had taken place. The defence was not that there was no riot, that fact was admitted, but that the appellants did not take part in the riot.


We were, therefore, satisfied that the inspection of the locus in quo by the Magistrate in the absence of the appellants did not lead to any miscar­riage of justice.


We therefore applied the proviso to section 11(1) of the Federal Sup­reme Court (Appeals) Ordinance and dismissed the appeal.


DE LESTANG, F.J.: I concur




I concur.



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