CLAUDE NABHAN V. GEORGE NABHAN

• Pages: 44-51

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

We are unable to agree with the learned senior state counsel on this because

there is nothing in subsection (a)(iii) to suggest that the court may annul a convic-

tion before altering a finding. We agree with the decision in

The Commissioner

of Police v. Ayiku

5 W.A.C.A. 89, and in our opinion, where on appeal the court

thinks section 40(a)(ii) is appropriate and quashes a conviction and sentence, one

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of the three consequential orders under the subsection must be pursued by the

court.

We have given some consideration to this case and we have come to the con-

clusion that in the circumstances it would be best to quash the conviction and

sentence passed by the learned judge of appeal and order that the appellant be

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retried in the High Court and we so order. We cannot understand why he was

tried in the Magistrate Court in the first instance for an offence of such a nature.

We observe in the record of appeal that the learned magistrate who heard the

case acquitted the appellant on the second count of indecent assault, and the rea-

son given was that the evidence on that charge was the same as on the first count.

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This is clearly wrong. A cursory glance at paragraph 311 of Brett and McLean

"Criminal Law and Procedure" would help the learned magistrate in future. The

answer in such circumstances, is for the court to abstain from recording anything

on the other count.

Appeal allowed.

CLAUDE NABHAN V. GEORGE NABHAN

CLAUDE NABHAN

V

GEORGE NABHAN

APPELLANT

RESPONDENT

SUIT NO. SC 358/1965

30

SUPREME

COURT

ADEMOLA,

BRETT,

ONYEAMA,

COKER,

LEWIS,

9th February, 1967

OF NIGERIA

C.J.N.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

35

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Legislation - Constitution of the Federation, 1963, - section 117(2) (a) and proviso

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(f), and (4)(b) and (d) - Nigerian (Constitution) Order in Council, 1954

section 147 and 148 - The Nigeria (Constitution) (Amendment No.3) Order in

Council, 1959 - The Nigerian (Constitution) (Amendment No.2) Order in

Council, 1957 - West African Court of Appeal Ordinance - Federal Supreme

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Court (Appeal) Ordinance, 1958, section 3 - Adaptation of Laws (Miscellaneous

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Provision) Order 1960 - Supreme Court Act, 1960 - Federal Supreme Court

(Miscellaneous Provisions) Act, 1961.

Appeals to Supreme Court, Civil - Right of Appeal - Matrimonial Causes

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Decree nisi: a final decision - Interlocutory decisions (Western Nigeria) on

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matter in Exclusive Legislature List - Whether any appeal lies.

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