MAILAYI & ANOR. V. THE STATE

• Pages: 87-93

MAILAYI & ANOR. V. THE STATE

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87

removed from his house was the balance of the £500 he received. He did not give

any further particulars. The trial Judge rejected this explanation and we observe,

that out of the sum of £2,896:5s:5d paid to Onabamiro in the course of the scheme

£634:6s:Od was in settlement of claims for the refund of cash spent on repairs and

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maintenance: exhibits 45, 47, 49, 51, 52, 54 and 55. We see no ground for hold-

ing that the conviction on this count was not justified.

Although nothing now turns on the point, we would, before concluding, men-

tion a passage in the judgment where the trial Judge said:-

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"I must say at this stage that the second and third accused closed their case

at the end of my ruling on the no case submission, and any evidence led

thereafter would not affect their case at all."

The correctness of this statement of law has not been in issue on the appeal,

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and we have heard no argument about it, but we would point out that a submission

in accordance with it was unhesitatingly rejected by the West African Court of Ap-

peal in

R.

v.

Agwuna

(1949) 12 W.A.C.A. 456, 460, and that until that decision is

overruled by a competent court it is binding on all courts in the Federation.

In the result, on counts one, four, six, eleven, thirteen, fourteen and fifteen the

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appeals of all the appellants convicted on those counts are allowed, the convic-

tions are set aside and judgment of acquittal is entered. On count two the appeal

of Dr. Sanya Dojo Onabamiro is dismissed.

Appeal allowed in part.

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MAILAYI & ANOR. V. THE STATE

30

35

1.

GARBA MAILAYI

2.

USMAN SOKOTO

V

THE STATE

APPELLANTS

RESPONDENT

SUIT NO. SC 295/67

SUPREME COURT OF NIGERIA

BRETT,



J.S.C.

COKER,



J.S.C.

MADARIKAN,



J.S.C.

40

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4th April, 1968.

Criminal Law

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- Charge - Judge failing to order separate trials of counts 1

and

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3

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-

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Whether 1.

~

rosectttion

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acted

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within



S.214 ( 1)

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of the

CriniittalProcedureCodeinjoin ing thecounts.

Evidence - Accomplice - Whether trial judge failed to exercise necessary caution

in assessing credibility of witness - Evidence Act, S. 177 ( 1) and (2) - House

trespass - Police officer - Duty of a police officer to prevent commission of

a crime.

ISSUES:

1.

Should a trial judge order separate trials of two counts, where the charge as

constituted is valid in law, and in the absence of any application for a separate

trial.

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50