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MICHAEL JOHN AOUAD AND ANOTHER
V.
INSPECTOR-GENERAL OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF FEBRUARY, 1954
2PLR/1954/29 (WACA)
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OTHER CITATION(S)
2PLR/1954/29 (WACA)
(1954) XIV WACA PP. 449 – 450
LEX (1954) – XIV WACA 449 – 450
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA,
COUSSEY, J.A.
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BETWEEN:
1. MICHAEL JOHN AOUAD
2. JAMES OLANIYI – Appellants
AND
INSPECTOR-GENERAL OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: No. 213/1953
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REPRESENTATION
H. O. Davies — for Appellants
C. O. Madarikan — for Inspector-General of Police
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction for offence under section 427 of the Criminal Code — Receiving relating to certain ore — Evidence of person holding office as an Inspector of Mines under the Minerals Ordinance as an expert of the office he held and the tests he had made to ascertain the nature of the ore — Proper treatment of
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Evidence Ordinance, section 56 – “Expert”
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CASE SUMMARY
Section 56 of the Evidence Ordinance reads as follows:-
“(1) When the Court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.
“(2) Such persons are called experts.”
The appellants were convicted by a Magistrate of an offence under section 427 of the Criminal Code (receiving) relating to certain ore, on the nature of which a person holding office as an Inspector of Mines under the Minerals Ordinance was called by the prosecution as an expert and gave evidence of the office he held and the tests he had made to ascertain the nature of the ore, but was not cross-examined on those tests or on his qualifications. In the appeal from the Magistrate to the Supreme Court the question of his being an “expert” was raised for the first time and decided against the appellants, who appealed further.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
The nature and duties of the witness’s public office and the technical or scientific tests he made, which were not challenged, constituted prima facie evidence of his qualification to be admitted as an expert witness.
(Editor’s Note: The decision in the Supreme Court was based on the judgment of W.A.C.A. in Said Ajami v. Assistant Comptroller of Customs, 19th February, 1952, No. 3864, which was upheld in the Privy Council on 7th November, 1954; both judgments are printed together among the W.A.C.A. cases for 1952. The Editor has not seen any judgment of the Privy Council in the present case of Aouad, but has been told by the Deputy Chief Inspector of Mines that an application for special leave to appeal was refused there.)
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J., NIGERIA.
This is an appeal from a decision of the Supreme Court dismissing an appeal from a Magistrate’s Court in which the appellants were convicted of an offence contrary to section 427 of the Criminal Code.
Two grounds of appeal only were argued, others set out in the memorandum of grounds as amended having been disallowed either as relating to matters of fact leave to appeal in regard to which was not granted or as raising questions of law which had not been raised on the appeal to the Supreme Court. There being no special circumstances in this case this Court followed its usual practice in declining to entertain such grounds at this stage.
The offence related to certain mineral ores and evidence as to their nature was received by the Magistrate from a witness who gave expert opinion in regard thereto. It is submitted on behalf of the appellants that there was no prima facie evidence that the witness was “specially skilled” in this subject so as to warrant his being treated as an “expert” within the meaning of section 56 of the Evidence Ordinance (Cap, 63). The witness gave evidence that he was an Inspector of Mines under the Minerals Ordinance (Cap. 134) and that he made certain tests in order to ascertain the nature of the ores in question. He was not cross-examined as to his personal qualifications, as to his ability to make these tests or as to the accuracy of the conclusions he drew therefrom. It is clear that he was put forward by the prosecution as an expert, his qualifications were not questioned by the defence and he was accepted as such by the Magistrate. The question was raised for the first time at the appeal to the Supreme Court and the learned Judge in a carefully considered judgment held that there was sufficient evidence of special skill to justify the admission in evidence of the witness’s opinion. We think that he was right. The nature and duties of the witness’s public office and the conduct by him of technical or scientific tests the nature and efficiency of which have not even now been challenged constitute in our opinion prima facie evidence of his qualifications sufficient to justify the admission of his evidence as that of an expert.
It was further submitted that the duties of his office are such that even if held to be an expert he should not have been admitted to give evidence as such. Counsel did not press this submission and we do not think it well founded.
These being the only grounds of appeal argued and both having failed we dismissed the appeal.
Appeal dismissed.
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