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EMMANUEL OYEFOLU & OTHERS
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
13TH DAY OF APRIL, 1951
2PLR/1951/34 (WACA)
OTHER CITATION(S)
2PLR/1951/34 (WACA)
(1951) XIII WACA PP. 186-187
LEX (1951) – XIII WACA 186-187
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOHD, J.
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BETWEEN:
EMMANUEL OYEFOLU & OTHERS – Appellants
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR. APP. 3290
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REPRESENTATION
Akintola — for Appellant
Egbuna — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Visit to locus in quo by Court of locus in quo in the absence of the accused —Irregularity of — When would be deemed fatal to conviction arising from entire trial — Relevant considerations
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CASE SUMMARY
The Court visited the locus in quo attended by Counsel, but the accused persons were absent during the whole of the visit. Counsel for the Crown conceded that there was an irregularity, as the visit formed part of the trial and the accused persons should be present throughout. Such an irregularity is not fatal unless the Court is satisfied that it might amount to a substantial miscarriage of justice. One issue at the trial was the opportunity of the appellant to commit the offence, and the Court considered the premises should be inspected to decide the issue. Furthermore, at this inspection certain statements were made by a witness for the prosecution.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. If the visit to the locus in quo was necessary, then the statements made thereat were material and must have affected the mind of the trial Judge and a substantial miscarriage of justice might have arisen.
2. Appeal allowed. Conviction quashed. Decision of trial court set aside and a verdict of acquittal entered.
Case referred to:
(1) Rex v. Dogbe, West African Court of Appeal Judgments, Gold Coast, March/July, 1947, 122.
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MAIN JUDGMENT
The following judgment was delivered:
VERITY, C.J.
In this case there is but one ground of appeal based on the fact that the Court visited the locus in quo attended by Counsel, but the accused persons were absent during the whole of the visit. Certain statements were made by a witness for the prosecution during the course of the visit and it was submitted by Counsel on behalf of the appellants that this is an irregularity and, moreover, an irregularity of such a material kind that a substantial miscarriage of justice might arise therefrom. Counsel for the appellants view is supported by that of Counsel for the Crown, who stated that he was unable to support the conviction. With regard to the irregularity of the visit, it is, of course, well established that when a view is made by the Court to the locus in quo this forms a part of the trial, and it is essential that the accused persons should be present, as in cases of this nature it is essential that the accused should be present throughout the trial. There was, therefore, an irregularity in the course of the view.
It may be of guidance if we draw attention to a judgment of this Court delivered on the 14th June, 1947, in the case of Rex v. Albert Dogbe (1), where this Court laid down the procedure that is desirable on views. 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.
The Court obviously had found it desirable, in order to come to a true conclusion on the facts of the case, that a visit should be made. One issue, it appears from the record, was the opportunity of the appellant to commit the offence, and it is obvious that it appeared to the Court desirable that the premises should be inspected in order that a just conclusion should be come to on that issue.
At the visit certain statements were made by a witness for the prosecution; these statements were made in the absence of the accused persons, and, as it would appear, with no opportunity for cross-examination. If the visit to the locus quo was necessary, then, in our view, the statements made thereat were material, and if they were material, then, whatever the evidence they must have affected the mind of the learned trial Judge. As they were made, in the circumstances, it is our view that a substantial miscarriage of justice might have arisen therefrom.
It is in these circumstances that we would allow the appeal, the conviction to be quashed, the decision to be set aside and a verdict of acquittal entered.
Appeal allowed.
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