ADEWUSI V. THE QUEEN

• Pages: 254-257

254

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NIGERIAN SUPREME COURT CASES

[1963) N.S.C.C.

There can be no doubt that both parties to this action on appeal, have not, as

they should have done, put all their cards on the table before their respective Coun-

sel, but be that as it may we are of the view that the onus of establishing a plea of

res judicata

lay fairly and squarely on the shoulders of the party who seeks to rely

on it, in this case on appeal, on the Gogo people. As we have said before, they

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knew of the existence of those proceedings for they appeared before the Resi-

dent. It was therefore their duty to put their Counsel "in the know". They failed to

do this. We are also of the view that the Ewu people cannot be completely ab-

solved from blame in as much as it was the duty of their Counsel to assist the Court

by placing before it all matters relevant to the Suit in its endeavour to do substan-

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tial justice. For these reasons we feel that they should not be allowed their full

costs either in this Court or in the Court below. Taking all these matters into con-

sideration, we are of the view that a just and equitable order to make in this mat-

ter is to allow the appeal, set aside the judgment of the Court below and to remit

the case to the High Court for a new Trial before another Judge, with liberty to both

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parties to deliver fresh pleadings. The appellants, the Ewu people, are entitled to

a refund of their costs of 150 guineas paid to the Gogo people in the Court below.

The Ewu people will have the costs of the trial before Stephen Thomas, J., which

we assessed at 100 guineas and the costs in this Court which we assessed at £50:

Bairamian, J.S.C.

I concur.

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Morgan, Ag. J.S.C.

I concur.

Appeal Allowed.

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ADEWUSI V. THE QUEEN

SAMUEL A. ADEWUSI

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APPELLANT

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V

THE QUEEN

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RESPONDENT

SUIT NO. FSC 210/1963

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

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TAYLOR,

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J.S.C.

BAIRAMIAN,

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J.S.C.

1st November, 1963.

Criminal Law - Stealing - Conversion by person receiving money on behalf of

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another - Charge of Stealing - Naming the owner of the property stolen.

Criminal Code of Western Nigeria S.328 - Criminal Procedure Ordinance S.154(1)

- 3rd

Schedule, mode of

stealing charge.

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ISSUES:

1.

Whether a person who receives money on behalf of another and converts it to

his own use is guilty of stealing it, and in which person does ownership rest.

2.

Whether it is mandatory in drafting a charge of stealing to include the name of

the person whose property was stolen

FACTS:

The appellant was Chairman of a Council and on its behalf received money

from a Company from the issuance of permits to fell trees in a designated area.

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