SOWANDE V. SOWANDE IN RE QUEEN'S PROCTOR

• Pages: 218-222

218

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NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

The Court thinks that there is no substance in ground (2). Being in custody for

less than four months is not enough reason for not ordering a retrial. If the appel-

lant is convicted, he can ask the convicting Magistrate to take that into account.

It is hard to understand ground (7), which refers to

Abodundu v. The Queen.

There the Court stated some rules of practice for guidance in ordering a retrial.

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One of them is that it should appear that there is a substantial case against the ap-

pellant; which is precisely what the High Court said in the case in hand.

Moses Okoro v. Inspector-General of Police

is mentioned in ground (1) appar-

ently as authority for the argument that, if the trial is a nullity through a defect in the

charge, there should be no retrial. Okoro was tried under section 100 of the Crimi-

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nal Code; the charge should have alleged that he was a person employed in the

public service; it did not so allege. The Court of Appeal held that the trial was a

nullity but did not order a fresh trial because the only charge before the court was

one that was bad. Some words would have had to be added, but amendment was

not possible on appeal; apparently the court thought that it was pointless to order

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a trial on a charge that was bad. Okoro was decided in November, 1953. It is de-

sirable to point to

Anu v. Inspector-General of Police,

3 F.S.C. 34, where

Okoro

is mentioned at page 35 with an implication of doubt; also to the judgment in

The

Queen v. ljoma,

F.S.C. 309/1961, decided on 7th July, 1962, in which

R v. McVitie,

(1960) 2 Q.B. 483 44 Cr. App. R 201 is cited and followed. The Court of Appeal

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in

Okoro's

case did not have the advantage of

McVitie,

which was decided in 1960.

In any event, there are points of difference. The charge in

Okoro's

case was laid

under a section appropriate to the offence alleged; it was, however, a defective

charge in its particulars of the offence. Here the charge was laid under an enact-

ment which did not apply: it is not merely a question of defective particulars.

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Okoro's

case is ir-elevant to the circumstances of the case in hand.

The Court is of opinion that there is no substance in the arguments, and the

grounds of appeal fail. The appeal is therefore dismissed, and the order of retrial

is confirmed.

Appeal dismissed. Order of retrial

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confirmed.

SOWANDE V. SOWANDE IN RE QUEEN'S

PROCTOR

OLUFELA CHARLES SOWANDE



APPELLANT

V

MILDRED BERNICE SOWANDE



RESPONDENT

IN RE QUEEN'S PROCTOR

SUIT NO. FSC 130/1962

FEDERAL SUPREME COURT

ADEMOLA,



C.J.F.

TAYLOR,



F.J.

BAIRRAMIAN.



F.J.

28th June, 1963.

Family Law - Petition for divorce - Dissolution of Marriage - Desertion - Ingredients

of desertion - Whether proved or not - Delay in presenting petition - Burden

of

proof required - Power of court to imper desertion from facts of care.

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