D.P.P. V. OBI

• Pages: 213-216

D.P.P. V. OBI.

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213

cited. The position is similar to that considered by the Judicial Committee in

Chan

Kau v. The Queen,

(1955) A.C. 206, with this distinction that in the present case,

on the view most favourable to the appellant, a verdict of acquittal would have been

justified. The proper direction in a case of this kind is discussed in

R.

v.

LobeII,

5



41 Cr. App. R. 100.

We hold, therefore, that there was a substantial misdirection and we are unable

to regard this as a case in which the proviso could be applied. On this issue it is

material to have regard not only to the meagreness of the evidence for the pros-

ecution but also to the further ground of appeal which complains that the summ-

10

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ing-up failed to call attention to the significance of the opinion expressed by the

doctor who conducted the post-mortem, to the effect that if there had been a de-

liberate attempt to wound the deceased the wound which killed him would have

been deeper. This would tend to support the theory of accident rather than self-

defence, but we agree that the omission to direct the jury on it was a material mis-

15

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direction of fact. In the circumstances the only safe course is to allow the appeal,

set aside the judgment and sentence and order that a judgment and verdict of ac-

quittal be entered.

Appeal allowed: Conviction

quashed; Judgment and Verdict of

20

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acquittal entered.

D.P.P. V. OBI.

25

DIRECTOR OF

PUBLIC

PROSECUTIONS



APPELLANT

V

30 CHIKE OBI RESPONDENT

SUIT NO. FSC 56/1961

FEDERAL SUPREME COURT.

BRETT,



Ag. C.J.F.

UNSWORTH,



F.J.

35



TAYLOR,



F.J.

25th July, 1961.

Constitutional Law - Appeal to Pnvy Council - Constitution of the Federation,

section 114(1)(c).

40

Practice and Procedure - Appeal



Application for leave to appeal to Privy

Council - Decision on

Constitutional reference under Constitution of

Federation,

sections 108(2), 108(3) - Proceedings on Reference distinct from proceedings in

which question arose - Final judgment - Appeal as of right - Constitution of

45

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the Federation, section 114(c).

ISSUES:

1. How is it to be determined whether the decision of the Supreme Court on a

constitutional reference under the 1960 Constitution is final or interlocutory.

50

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2. Whether the decision of the Supreme Court on a constitutional reference is final

on a question as to the interpretation of the Constitution so as to give rise to an

appeal "as of right" against such a decision.