Jurisprudence

• Pages: 447-514

Administration of criminal justice in Nigeria Paras. 801,802

JURISPRUDENCE

(1) ADMINISTRATION OF CRIMINAL JUSTICE IN NIGERIA

801. Administration of criminal justice.

“The criminal law of this country and indeed of any country, is predicated on the

commission of an offence. It is not predicated on some assumption or speculation

that an offence has been committed. While such assumption or speculation of com-

mission of an offence may be useful in some other areas of human activity, it is not

good enough for a Court of law in adjudicating on guilt. In determining guilt the

interest of the Court, and the only interest for that matter, is whether the prosecution

has proved the legal ingredients of the offence. And in the context of this case,

whether a prima facie case has been made out against the accused to warrant his

defence.” - Per Tobi, J.C.A. in Onagoruwa v. State Suit No. CA/L/230M/90; (1993)

7 N.W.L.R. (Pt. 303) 49 at 107.

802. Statutes of General Application.

(1) “We referred counsel, however, to the decision of this Court in Sabbah v. Bank

of W. Africa Ltd. (1967) 1 A.L.R. Comm. 420. where this Court rejected the argu-

ment that the decision of Smith, S.P.J. in Barclays Bank of W. Africa Ltd. v. Adigun

(1961) All N.L.R. 536; 1962 N.N.L.R. 40. was applicable, at any rate in the High

Court of Lagos, but followed the provisions of S.17 of the English Judgments Act,

1838, being a statute of general application, which reads: - “Every judgment debt

shall carry interest at the rate of four pounds per centum per annum from the time of

entering up the judgment … until the same shall be satisfied, and such interest may be

levied under a writ of execution on such judgment.” - Per Lewis J.S.C. in Ojikutu v.

African Continental Bank Ltd. Suit No. S.C. 401/66; (1968) 5 N.S.C.C. 32 at 35;

(1968) N.C.L.R. 199 at 202.

(2) “Assuming for the moment that a judgment debt which is payable forthwith car-

ries interest, we are inclined to think that it would be wrong to deprive the judgment

creditor of interest merely on the ground that there was no local rule similar to the

above English rule.

The maxim ubi jus ibi remedium might be invoked to entertain an application

for interest. But in a Lagos case that point does not arise, for S. 12 of the High Court

of Lagos Act provides that: - “The jurisdiction vested in the High Court shall, so far as

practice and procedure are concerned, be exercised in the manner provided by this

or any other Act, or by such rules and orders of Court as may be made pursuant to

this or any other Act, and in the absence of any such provisions in substantial with the

practice and procedure for the being of Her Majesty’s High Court of justice in En-

gland.” Thus the absence of a local rule does not matter, and the question of sub-

stance is whether the Judgments Act, 1938 applies as being a statute of general

application in accordance with our Law (Miscellaneous Provisions) Act (Cap. 89 as

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Paras. 802-804 Vol. 13: JURISPRUDENCE 448

amended) … S. 45(1) and (2) …….” Later, the Court was of the following opinion

(1967) (1) A.L.R. Comm. At 425): - “Once it has been conceded by Mr. Lardner

that the Judgments Act, 1838 applies, nothing in the local legislation has been referred

to for not applying S.17 to a judgment debt that is payable forthwith. But the High

Court could not have ordered interest at 5% and the judgment under will be varied to

make it 4%.” - Per Lewis, J.S.C. in Ojikutu v. African Continental Bank Ltd.

(1968) 5 N.S.C.C. 32 at 35; Suit No. S.C. 401/66; (1968) N.C.L.R. 199 at 203 - 204.

(3) “Thus the absence of a local rule does not matter, and the question of substance

is whether the Judgments Act, 1838 applies as being a Statute of General Application

in accordance with our Law (Miscellaneous Provisions) Act (Cap. 89, as amended)

which provides in S. 45(1) and (2) as follows: - “(1) Subject to the provisions of this

Section and except in so far as other provision is made by any Federal law, the

Common Law of England and the doctrines of equity, together with the Statutes of

General Application that were in force in England on the 1st day of January, 1900,

shall be in force in Lagos and, in so far as they relate to any matter within the

exclusive legislative competence of the Federal legislature, shall be in force else-

where in the Federation. (2) Such Imperial laws shall be in force so far as the limits

of the local jurisdiction and local circumstances shall permit and subject to any Fed-

eral law.” Mr. Lardner, (learned counsel for the defendants), conceded that the Judg-

ments Act, 1838 applied if there was no local provision to the contrary.” - Per

Bairamian, J.S.C. in Sabbagh v. Bank of West Africa Ltd. (1966) 4 N.S.C.C. 275 at

277-278; Suit No. S.C. 258/1965; (1966) N.C.L.R. 430 at 434, 435.

803. Sympathy, politics and justice.

“Sympathy is not always the fore-runner for justice; and a political problem cannot in

any disguise be solved by judicial process.” - Per Oguntade, J.C.A. in Ude v.

Ojoechem Suit No. CA/E/209/88; (1991) 2 N.W.L.R. (Pt. 174) 497 at 508.

(2) ADMINISTRATIVE SOLUTIONS

804. Proffering administrative solutions to legal problems.

“This is a matter of legal opinion. The question arose when the respondent was to

stand election for a second term as dean of the Postgraduate School. D.W.7, D.W.8

and D.W.9 among others protested against the respondent’s eligibility having served

a term of two years previously. The protests originated from the interpretation of the

phrase “one term of two years”. From the exhibits and the evidence, there were

conflicting legal opinions on the said phrase.

The Senate settled the matter by voting – See Exhibit P.13. A matter of legal

interpretation cannot be determined by a vote of the Senate. The appellant limited the

scope of Exhibit P.15 by saying that the respondent was not a Dean within the Ibadan

University Act. Before holding that the publication was false and malicious, the learned

449 Administrative solutions Paras. 804-806

trial Judge should have attempted to define the words within the meaning of the

University of Ibadan Act since they are legal terms of art. He should not have pre-

ferred the procedure taken by the Senate when it resorted to voting in arriving at his

conclusion since the Senate is not a Court of law.

It was possible that the Senate settled for voting as a matter of administrative

convenience. That did not mean that the matter was resolved permanently. Having

surfaced again in a judicial proceeding, it was an opportunity for the learned trial

Judge to define the expression and affix his judicial stamp on it.” – Per Ogwuegbu,

J.C.A. in Ekanem-ita v. Fetuga Suit No. CA/I/28/90; (1991) 7 N.W.L.R. (Pt. 204)

449 at 473.

(3) ADVERSARY SYSTEM OF ADJUDICATION

805. Adversary system of adjudication.

(1) “In our Adversary System, the role of the Judge is passive, while that of counsel

is rather active. A Judge should not appear to be a participant otherwise, he will not

be seen to be holding the scales of justice fairly, evenly and impartially.”- Per Oputa,

J.S.C. in Onuoha v. State (1989) 2 N.W.L.R. (Pt. 101) 23 at 38; Suit No. SC 55/

1987; (1989) 20 N.S.C.C. (Pt. I) 411 at 421.

(2) “Now what were the surrounding circumstances of this case which ought to form

the crucial wedges necessary to drive conviction into the mind? What were the pos-

sibilities and probabilities, which ought to include belief in the testimony of P.W.2?

All men stamp as probable or improbable that which they themselves would or would

not have said or done under similar circumstances. Things inconsistent with human

knowledge and human experience are properly rated as improbable and as Aristotle

aptly put it many, many years ago – “Probability is never detected bearing a false

testimony.” Where therefore the facts deposed to by a witness look probable when

considered in relation to all the surrounding circumstances, they induce belief. But

when they look improbable they should not induce belief and in such a case it will be

unsafe to believe. It is also necessary to mention that no event happens in a vacuum,

happens without causing or influencing other events or explaining them. The event,

its antecedent and its subsequent events, all form the surrounding circumstances of

the case. A witness’s testimony to be credible will completely accord with its sur-

rounding circumstances.”- Per Oputa, J.C.A. in Onuoha v. State Suit No. S.C. 55/

1987; (1989) 2 N.W.L.R. (Pt. 105) 23 at 32; (1989) 20 N.S.C.C. (Pt. I) 411 at 415.

(4) ANNULLING THE CONSTITUTION OF A COUNTRY

806. Civilian government inviting the armed forces to form an interim gov-

ernment.

“It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented

in history. Never before, as far as we are aware, has a civilian government invited an

army take-over, or the armed forces to form an interim Government. We disagree