EKPENYONG V. THE STATE

• Pages: 283-286

EKPENYONG V. THE STATE

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thereby. If the defendants had objected before pleading to the inconsistency then

the pleading would, if no amendment had been allowed, in all probability have

been struck out so that the defendants have lost nothing by the plaintiffs now being

non-suited. Indeed by delaying they seem successfully to have been awarded

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quite substantial costs by the learned trial judge so if anything they have gained by

their delay, though we must here once again deprecate the practice of delaying to

the last moment an objection which should more properly have been taken at the

first opportunity. The second defendant not having satisfied us that we would be

justified in reversing the judgment of a non-suit given in the learned trial Judge's

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discretion, this appeal is accordingly dismissed. On this appeal the plaintiffs/ re-

spondents are entitled to their costs which we assess at 28 guineas, but as the de-

fendants/appellants succeeded in their preliminary objection to the cross-appeal

and we reserved our decision as to costs in that regard we would award them 5

guineas costs in that respect. The order of this Court is, therefore, that the appeal

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be dismissed with 23 guineas costs to the plaintiffs/respondents.

Appeal dismissed.

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EKPENYONG V. THE STATE

ASUQUO EKPENYONG

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V

THE STATE

SUPREME COURT OF NIGERIA

BAIRAMIAN,

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J.S.C.

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LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

14th December, 1967

APPELLANT

RESPONDENT

SUIT NO. SC 221/1967

Criminal Law - stealing - Appeals to Supreme Court - Defendant wrongly

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convicted on some counts hut rightly on others - powers to substitute (or

impose) sentence on good counts, application and extent -

Legislation - Criminal Appeal Act (England), 190Z section 5(1), Supreme Court

Act, 1960, section 27.

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ISSUES:

1.

Where the Supreme Court quashes the conviction and sentence on some

counts only, may it under section 27(1) of the Supreme Court Act 1960 pass

new sentence on the good count (or counts) in substitution for that passed by

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the trial court whether or not the offences charged are connected?

2.

Whether such power in (1) above is limited.

3.

What are some of the consideration taken into account in imposing stiff sentence

on conviction for a charge of stealing?

FACTS:

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The appellant opened an account in a business name in one bank with £60;

and began to feed it over a period with forged cheques drawn on another bank.

Within the same period he withdrew amounts totalling £10,000. The trial Judge

convicted him on five counts of forgery of the cheques, five counts of uttering and

six counts of stealing money, the property of the other bank. He was sentenced