THE QUEEN V. ANIEMEKE & ANOR

• Pages: 48-51

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NIGERIAN SUPREME COURT CASES [1961] N.S.C.C.

The District Officer had thus no power, in the exercise of his appellate jurisdic-

tion, to order the case to be retried before the High Court, but Mr. Aniagolu has

submitted that even if the second part of the order made by the District Officer was

a nullity the District Officer nevertheless had power to set aside the judgment of

the Native Court without making any other order, and that he made a valid exer-

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5

cise of that power. Under paragraph (a) of section 40(1) of the Ordinance the Dis-

trict Officer had power, on this submission, to deprive the plaintiff of judgment,

just as the court of first instance had power to dismiss the case. Under paragraph

(b), the submission is that an order for rehearing involves the setting aside of the

judgment of the Native Court and that there may be a valid setting aside of the judg-

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10

ment even if the order for rehearing is invalid.

In my opinion these submissions fail and Sir John Ainley, C.J., was right to re-

ject them. If a judgment is merely set aside and no further order is made, the po-

sition is as if the court of first instance had given no judgment at all. The power

to make such order as the court of first instance could have made does not in-

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elude the power to produce such a result as this, and it is quite impossible to derive

a power of merely setting aside a judgment from paragraph (a) of section 40(1).

As for paragraph (b), it is well settled that an order for rehearing impliedly set aside

the judgment appealed against, but the only power expressly conferred by the

paragraph is the power to order a rehearing, and I am unable to accept the sub-

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mission that a power which is merely consequential or ancillary can be exercised

independently of tie valid exercise of the power conferred expressly. As Sir John

Ainley, C.J., put it ''A naked power to set aside judgments is not provided for by

section 40".

Mr. Aniagolu argued that the District Officer's order setting aside the judgment

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was valid until it was itself set aside on appeal or by order of

certiorari,

but I agree

with Sir John Ainley, C.J., in regarding the order as a nullity, and no formal order

is required in order to deprive it of legal effect.

For these reasons I consider that the Court below came to the right decision

and I would dismiss the appeal, with costs assessed at 37 guineas.

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Ademola, C.J.F. I concur.

Unsworth, F.J. I concur.

Appeal dismissed.

THE QUEEN V. ANIEMEKE & ANOR.

THE QUEEN

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RESPONDENT

V

EDWARD ANIEMEKE & ANOTHER

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APPELLANTS

SUIT NO. FSC 21

2

/

6

0

FEDERAL SUPREME COURT.

ADEMOLA,

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C.J.F.

BRETT,

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F.J

UNSWORTH,

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F.J.

23rd February, 1061

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Criminal Law - Information (or charge - One count dial

-

ging two or more offences

of stealing goods - Count of conspiracy.