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REX
V.
AMIDA GBADAMOSI AND OTHERS (1)
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
26TH DAY OF APRIL, 1940
2PLR/1940/79 (WACA)
OTHER CITATION(S)
2PLR/1940/79 (WACA)
(1940) VI WACA P. 83
LEX (1940) – VI WACA P. 83
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BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX — Respondent
AND
AMIDA GBADAMOSI AND FIVE OTHERS — Appellants
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REPRESENTATION
C. N. S. Pollard — for Crown
Sir W. Geary with A. Soetan — for 3rd Appellant
A. Soetan (alone) — for 1st, 2nd, 5th and 6th Appellants
J. E. C. David — for 4th Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Failure to give evidence at trial — Application to proffer same on appeal — Attitude of appellate court thereto — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Fresh evidence — formal application not filed but application heard on merits
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) That the neglect to make the application is not a mere formality and nature of further evidence was not fully disclosed.
(2) To grant it might leave the door open to an accused to demand that Court of Appeal instead of trial Court should try him.
Application refused.
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MAIN DECISION
The following order was given:-
KINGDON, C.J., NIGERIA.
Although formal application, in the prescribed form, to call fresh evidence has not been filed, the Court as an act of indulgence has allowed that application to be made on behalf of the 3rd appellant, and has considered it on its merits. The neglect, however, to make the application in proper form is not a mere formality for up to the present moment the appellant has not fully disclosed the nature of the evidence he wishes to give.
It would form a most dangerous precedent to grant this application; it would leave the door open to any accused who wished to be obstructive to stand mute at his trial and then to demand that the Court of Appeal, instead of the trial Court should try him.
If there were irregularities at the trial, that is a different matter. It is raised in the grounds of appeal and will be considered in due course.
The application to call fresh evidence is refused.
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