GEORGE & ORS V. DOMINION FLOUR MILLS LTD.

• Pages: 54-61

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NIGERIAN SUPREME COURT CASES [1963] N.S.C.C.

ing the whole charge or information. The idea in the Northern Region is that the

charge should be framed by the Magistrate instead of being left in the hands of

lay prosecutors to frame.

The learned Attorney-General, Northern Region, informed us that, on the Indian

authorities, the Magistrate should frame the charge as early in the preliminary pro-

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ceedings as possible. With that we agree, it is best that the charge be framed as

soon as some evidence for the prosecution shows, directly, or circumstantially or

inferentially, that there is a

prima facie

case of the commission of an offence.

We are not, in this appeal, deciding on the constitutionality of section 159 of

the Criminal Procedure Code or of other provisions which were not acted under

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by the learned Magistrate; we may one day be called upon to do so when those

provisions will receive our due consideration. It is enough in this appeal to say

that the learned Magistrate did not act under such provisions.

The submission that the Magistrate, under the procedure he followed in this

case, must have presumed the accused guilty when he framed the charge, in our

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view, is ill founded and we are satisfied that the provisions of section 21 (4) of the

Constitution have not been infringed.

Appeal dismissed.

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GEORGE & ORS V. DOMINION FLOUR

MILLS

LTD.

25

1.

ABIMBOLA GEORGE

2.

A.M.P. LUFO'NORA

3.

C. AYODELE

(Trading as Apimbola

George and sons)

V

DOMINION FLOUR MILLS LTD.

(By its Attorney, Leslie Howard)

FEDERAL SUPREME COURT.

BRETT,



F.J.

TAYLOR,



F.J.

BAIRAMIAN,



F.J.

31st January, 1963.

APPELLANTS

RESPONDENT

SUIT NO. FSC 31/1962

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Civil Actions - Practice and Procedure - Aim of pleadings - Amendment - Power

to grant leave discretional), - Rule of audi alteram partem - Illegality - Not

ex facie - not raised by pleadings - Evidence of it may be disregarded.

ISSUES:

1.

Where an unpleaded illegal act is disclosed in evidence, is a court bound to

exercise its discretion to grant leave to amend pleadings to the party now

seeking to rely on the illegal act as a defence.

2.

What should a Court consider in exercising its discretionary power to grant

leave to amend pleadings.

3.

Whether a Judge is bound to regard evidence obtained in cross-examination

but which is not material to any issue raised by the pleadings.

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