MISCARRIAGE OF JUSTICE

• Date: 06 February 2019

(1) "Miscarriage of justice means failure on the part of the Court to do justice. It is justice misplaced, misappreciated or misappropriated. It is an ill conduct on the part of the Court, which amounts to injustice. By our adversary system of adjudication, the burden is on the party alleging miscarriage of justice to prove in what circumstances he suffered injustice." - 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 104.

(2) "In Black’s Law Dictionary, 5th Edition, miscarriage of justice is defined as follows: - "Decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial rights of party." - Per Olatawura, J.S.C., in Sanusi v. Ameyogun Suit No. S.C. 288/1989; (1992) 23 N.S.C.C. (Pt. 1) 681 at 696.

(3) "In formulating the test which enables the Court to say whether there has been no substantial miscarriage of justice, the Court applied the test used in the Privy Council which, when modified to fit the circumstances of the case in hand, is whether on a fair consideration of the whole proceedings, the Court must hold that there is a probability that the error, to wit the failure to call upon the appellant to plead to the amended charge, turned the scale against the appellant. See: Bahaji Yaro v. The State (1972) 1 N.L.R 124 at 128. In The Queen v. Aderogba (1960) 5 F.S.C. 212 at 216 the Court adopted the test applied in the Court of Criminal Appeal in England as to what constituted substantial miscarriage of justice within the meaning of the proviso to section 4(1) of the Criminal Appeal Act 1907 of England from which the proviso to section 26(1) of the Act was modeled. The adopted test reads: "One of the objects of section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legislature was that justice should be done in spite of a wrong decision, and that the Court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The Court must always proceed with caution when it is of the opinion that a wrong view of the law has been taken by the Judge presiding at the trial, but when it is apparent, and, indeed, undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the Court must act upon the proviso in this section of the Act." - Per Bello, J.S.C., in Okegbu v. The State Suit No. S.C. 9/1977; (1979) 12 N.S.C.C. 151 at 188; (1979) 11 S.C. 1 at 86 - 87.

(4) "Lord Thankerton in Bihhadbati Devl v. Kuma Ramendra Narayan Roy (1946) A.C. 508 at p. 521 defined a miscarriage of justice as "such a departure from the rules which permeate all judicial procedure as to make what happened not in a proper sense of the word judicial procedure at all." See Obaseki, J.S.C. in Toyota (Nigeria) Ltd. v. Nwako (1978) 5 S.C. 1, 14." - Per Nsofor, J.C.A., in Afribank (Nig.) Plc. v. Shanu Suit No. CA/B/103/94; (1997) 7 N.W.L.R. (Pt. 514) 601 at 626 - 627.

(5) "Miscarriage of justice means such a departure from the rules which permeates all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if such proposition be corrected the findings cannot stand. (See Ezeala Nnajiofor and 5 Ors. v. Linus Ukonu and 2 Ors. (1986) 4 N.W.L.R. 505, 517)."- Per Kolawole, J.C.A., in Egbo v. Laguma Suit No. CA/E/117/85; (1988) 3 N.W.L.R. (Pt. 80) 109 at 128.

(6) "What then is the effect of the mistakes noted above on the legitimate findings of the lower Court? Is the effect tantamount to a miscarriage of justice? Section 227, Evidence Act, Cap. 112, 1990 Laws of the Federation provides that wrongful admission or rejection of evidence shall not be a ground for a reversal of any decision where it cannot be reasonably held by a Court of Appeal to have affected the decision and that such decision would have been the same if such evidence were not admitted. In short it must have occasioned a miscarriage of justice. The Privy Council in Mora & Ors. v. Nwalusi & Ors. (1962) 2 S.C.N.L.R. 73; (1962) 1 All. N.L.R. (Pt. 4) 681 at 687 opined thus: - "Miscarriage of Justice means such a departure from the rules which permeate all procedure as to make that which happened not in the proper sense of the word judicial procedure at all the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be correct the finding cannot stand; or it may be the neglect of some principle of law, or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding as such is a question of law." - Per Ogundere, J.C.A., in Adekunle v. Adegboye Suit No. CA/I/ 184/89; (1992) 2 N.W.L.R. (Pt. 223) 305 at 321.

(7) "What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law. See: Wilson v. Wilson (1969) A.L.R. 9." - Per Mohammed, J.S.C., in Okonkwo v. Udoh Suit No. S.C. 65/ 91; (1997) 9 N.W.L.R. (Pt. 519) 16 at 20 - 21.

(8) "A delay per se does not vitiate a judgment. The delay must have occasioned or caused a miscarriage of justice. In other words, it has to be manifested that the delay resulted in a miscarriage of justice owing to the trial Judge not taking a proper advantage of seeing or watching the witnesses who testified or he has lost his impressions of the witnesses due to the lapse of time or delay: Akpan v. Umoh (1999) 11 N.W.L.R. (Pt. 627) 349, 1999 S.C.N.J. The proper approach is to seek the definition of the words "miscarriage of justice" which according to the learned authors of Black’s Law Dictionary referred to by Chief Ajayi, learned senior counsel for the respondents, means thus: - "Miscarriage of justice. Decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of party. As used in constitutional standard of reversible error, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant ...A miscarriage of justice, warranting reversal, should be declared only when the Court after examination of entire cause including the evidence, is of the opinion that is reasonably probable that a result more favourable to appealing party would have been reached in the absence of the error." - Per Salami, J.C.A., in Jinadu v. Esurombi- Aro Suit No. CA/L/86/2001; (2005) 14 N.W.L.R. (Pt. 944) 142 at 193 - 194.

(9) "I have gone through the appellants’ brief and the oral submissions of learned counsel for the appellants and have not seen where learned counsel has argued that the error in the lower Court striking out the impugned grounds without more resulted in any miscarriage of justice. From a long line of decisions of this Court, miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but also with regard to the jurisdiction invoked by the proceedings in question. A finding that a different result necessarily would have been reached in the proceedings affected by the miscarriage is not required before one could reach the conclusion that there has been a miscarriage of justice in the proceedings. It is enough if what is done is not justice according to law - See Nnajiofor v. Ukonu (1986) 4 N.W.L.R. (Pt. 36) 505. Adigun v. A-G., Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678; Okonkwo v. Udoh (1997) 9 N.W.L.R. (Pt. 519) 16." - Per Onnoghen, J.S.C., in Aigbobahi v. Aifuwa Suit No. S.C. 194/2001; (2006) 6 N.W.L.R. (Pt. 976) 270 at 290 - 291.

(10) "I have very carefully considered the learned submissions by the counsel in their respective briefs of argument. A good starting point for me, I think, is first to clear my mind of what "Miscarriage of justice", as contended by the senior counsel, connotes or denotes. The submission is rather worrying unless one reads the record and with some profit. I have done so. Seeking for what "miscarriage of justice" means, I am happy to say that Mora v. Nwalusi (1962) 1 All N.L.R. 681 at page 687 by Privy Council per Lord Evershed adopting Lord Thankerton’s definition in Davi v. Roy (1946) A.C. 508, 521 quickly came to my aid. "Miscarriage of justice means a departure from the rules which permeates all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all ... the violations of some principles of law or procedure must be such an erroneous proposition of law that if the proposition be corrected the finding cannot stand or it may be the neglect of some principle of law or procedure whose application will have the same effect." - Per Nsofor J.C.A., in Administrators/Executors of the Estate of General Sanni Abacha v. Samuel David Eke, Spiff Suit No CA/PH/29/2000; (2003) 1 N.W.L.R (Pt. 800) 114 at 176.

(11) "In the recent case of Ojo v. Anibire (2004) 10 N.W.L.R. (Pt. 882) 571, the Supreme Court gave a guidance or interpretation of what amounts to a miscarriage of justice, It held to be dependant on the peculiar facts and...