OMOHODION V. C 0 P

• Pages: 245-247

OMOHODION V. G.O.P.

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245

OMOHODION V. C.O.P.

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OBADENEJI OMOHODION

V

10 COMMISSIONER OF POLICE

FEDERAL SUPREME COURT.

ADEMOLA,

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C.J.F.

UNSWORTH,

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F.J.

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TAYLOR,

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F.J.

26th October, 1961.

APPELLANT

RESPONDENT

SUIT NO. FSC 246/1961

Criminal Law - Assault occasioning bodily hann - Section 355 of the Criminal

Code - Magistrate's findings of fact not supported by evidence - Conviction

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set aside and conviction of common assault substituted - Criminal Code, Cap.

42, section 351.

ISSUE:

1. When will an appellate court disregard finding of fact by a trial court?

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FACTS:

The Appellant was charged before a Magistrate and convicted of assault oc-

casioning bodily harm, contrary to section 355 of the Criminal Code.

The victim of the assault, who was the first prosecution witness, testified that

the appellant "pushed his left eye" with a walking stick. The second prosecution

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witness, in his own evidence stated that he did not see this happen.

In his judgment the trial Magistrate held, inter alia, that he believed the evidence

of both the first and second prosecution witnesses; that though there was a slight

variation in their evidence as to how the injury to the eye was sustained, that one

was an "amplification" of the other. He also found that the appellant got hold of

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the walking stick "and applied it to the head of the first prosecution witness, and

dealt more blows on him resulting in the receipt by him of an injury to the left eye."

The evidence of the first and second prosecution witnesses was clearly irrec-

oncilable as to whether the appellant pierced the left eye of the first prosecution

witness with a stick; And there was no evidence whatsoever to support the finding

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that the appellant "dealt more blows" than one on the victim.

The Magistrate convicted the appellant as charged.

On appeal to the High Court the conviction was affirmed; the Judge held

inter

alia,

that the findings of fact made by the trial Magistrate were justified and that in

such circumstances the appellate Court should not disturb the findings.

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The Appellant appealed to the Federal Supreme Court.

HELD:

1.

Where

a trial court declares that it accepts the evidence of certain witnesses in

support of the finding of a material fact, and the record shows the testimony of

those witnesses to be irreconcilable on the fact as found, an Appellate Court

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will disregard the finding.

2.

Where the record discloses no evidence to support a finding of the trial court,

such finding will be disregarded on appeal.

[As to

Assault,

see 11 HALSBURY'S LAWS (4th Edition) 643 Para 1210.]